Opinion
No. 3-676 / 03-1314
Filed October 29, 2003
Appeal from the Iowa District Court for Muscatine County, John G. Mullen, District Associate Judge.
Father appeals the termination of his parental rights to his daughter. REVERSED.
Mark J. Neary, Muscatine, for appellant.
Thomas J. Miller, Attorney General, Tabitha Gardner, Assistant Attorney General, Gary Allison, County Attorney, and Korie Shippee, Assistant County Attorney, for appellee-State.
Arlen Poock, Muscatine, guardian ad litem for minor child.
Considered by Sackett, C.J., and Miller and Hecht, JJ.
Father appeals the termination of his parental rights to his daughter pursuant to Iowa Code sections 232.116(1)(e) and (h) (2003). We reverse.
I. Background Facts and Proceedings. Chad and Misty are the parents of Alia, born December 18, 2002. Although Misty informed Chad during her pregnancy that he, and not her husband, was probably the father of her child, Chad did not provide support to Misty either before or after Alia was born. On January 22, 2003, Alia was removed from Misty's care and placed in foster care. Soon after, paternity testing was ordered. On March 7, Alia was adjudicated a child in need of assistance (CINA). In late April 2003, paternity testing determined that Chad was indeed Alia's biological father.
After learning he was Alia's father, Chad requested and was allowed two supervised visits with his daughter during the month of May. During these visits, the visit supervisor observed Chad's interactions with Alia to assess his parenting skills. She also administered a series of tests designed to evaluate parenting skills. Chad's scores were above average.
The case plan created by the Department of Human Services (DHS) called for a permanency goal of Alia's adoption by her foster family. A secondary goal of reunification of Alia and Chad was also discussed. On June 3, 2003, the juvenile court entered a dispositional order accepting the permanency goal of adoption. The juvenile court also ordered that DHS was not required to provide any further reunification services to Chad. In June, Chad requested additional visitation with his daughter, but DHS denied his request, citing the dispositional order.
Misty had agreed to voluntarily terminate her parental rights to Alia.
On June 10, DHS filed a petition to terminate Chad's parental rights. After the termination hearing was held on July 11, 2003, the juvenile court terminated Chad's parental rights pursuant to Iowa Code sections 232.116(1)(e) and (h) (2003). Chad appeals.
II. Scope of Review. We review termination orders de novo. In re R.F., 471 N.W.2d 821, 824 (Iowa 1991). Our primary concern is the best interests of the children. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000).
III. Six-Month Removal Period. Chad contends the requirements of Iowa Code section 232.116(1)(e)(2) and (h)(3) have not been met. Both 232.116(1)(e)(2) and (h)(3) require the State to prove that the child has been removed from the physical custody of her parents for six months. It is undisputed that Chad has never had physical custody of Alia. However, Alia was not removed from her mother's care until January 22, 2003. The termination hearing was held on July 11, 2003, clearly eleven days shy of the six month removal requirement. The State concedes the statutory removal requirements of sections 232.116(1)(e) and (h) were not met as of the date of the termination hearing.
IV. Reasonable Services. Chad argues the State did not prove by clear and convincing evidence that Chad has not made reasonable efforts to establish a significant and meaningful relationship with Alia, as required by 232.116(1)(e)(3). He also contends the State did not prove by clear and convincing evidence that Alia could not be returned to his care at the time of the termination hearing, as required by 232.116(1)(h)(4). Because both of these subsections implicate the State's obligation to provide reasonable services for reunification, see C.B., 611 N.W.2d at 492, Chad specifically argues DHS did not provide reasonable services for reunification to him during the pendency of this case. He argues that DHS provided no services to him, except for allowing two supervised visits with Alia upon his request. He notes that he was denied additional visitation and that DHS did not attempt to provide any of the services it had recommended in its secondary plan to reunite Chad with his daughter.
The State argues that Chad has failed to preserve error on the issue of reasonable services for reunification because he failed to appeal the juvenile court's June 3 dispositional order relieving DHS of its obligation to provide further reunification services. We agree that any claim of error in the dispositional order is not properly before us because no appeal was taken from the order. See In re A.W., 464 N.W.2d 475, 477 (Iowa Ct.App. 1990). However, the dispositional order did not contain any findings regarding the reasonableness of the reunification services provided up to that time: the juvenile court simply relieved DHS of any further obligation to provide services. Because reasonable services for reunification are implicated under the code sections relied upon by the juvenile court to terminate Chad's parental rights, and because the dispositional order did not address the reasonableness of services provided, we will address Chad's claim.
After our de novo review of the record, we conclude DHS did not provide reasonable services to Chad prior to entry of the dispositional order, and thus the State has not proven by clear and convincing evidence that Chad failed to establish a significant relationship with Alia, as required by 232.116(1)(e)(3), or that Alia cannot be returned to Chad's care, as required by 232.116(1)(h)(4). The only services provided to Chad in this case were two visits, which were instigated by Chad. We cannot conclude that the mere allowance of two visits constituted reasonable services on the part of DHS to reunify Chad with his daughter.
When a parent argues inadequate services were provided, that parent has the obligation to demand other, different, or additional services prior to the termination hearing. In re S.R., 600 N.W.2d 63, 65 (Iowa Ct.App. 1999). We consider Chad's request for additional visitation after the dispositional order was entered a sufficient demand for additional services. We also acknowledge that despite the lack of services, Chad has made progress toward reunification with his daughter. He has enrolled in substance abuse treatment, found independent housing, and secured employment. Given these facts, in the face of the lack of services provided by DHS, we conclude the State has not met its burden for termination pursuant to sections 232.116(1)(e) and (h).
V. Conclusion. We conclude the State did not prove that Alia had been removed from her parents' custody for six months prior to the hearing on the termination petition. We further conclude that DHS did not provide reasonable reunification services, and thus the State failed to prove by clear and convincing evidence that Chad had not made reasonable efforts to establish a significant and meaningful relationship with Alia and that Alia could not be returned to Chad's care as of the time of the termination hearing. Accordingly, we reverse the juvenile court's termination of Chad's parental rights pursuant to Iowa Code sections 232.116(1)(e) and (h).