Opinion
No. 5-106 / 04-1842
Filed February 9, 2005
Appeal from the Iowa District Court for Wapello County, William S. Owens, Associate Juvenile Judge.
A father appeals from a juvenile court order terminating his parental rights to his son. AFFIRMED.
Jeffrey R. Logan, Curran Law Office, Ottumwa, for appellant.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, Mark Tremmel, County Attorney, and Jason Helm, Assistant County Attorney, for appellee-State.
Mary Krafka, Krafka Law Office, guardian ad litem for minor child.
Considered by Sackett, C.J., and Zimmer and Hecht, JJ.
James S. appeals from a juvenile court order which terminated his parental rights to his son. He contends there is not clear and convincing evidence to support termination of his parental rights. He also argues the State failed to make reasonable efforts to reunite him with his son. Upon our de novo review, we affirm the juvenile court's decision.
I. Background Facts Proceedings
Karessa C. and James S. are the unmarried parents of a son, K.C., born May 13, 2002. K.C. came to the attention of the Department of Human Services (Department) shortly after his birth. At that time, Karessa, then seventeen years of age, and K.C. were living with Karessa's mother in a small house in Ottumwa. Karessa's three younger siblings and Karessa's mother's paramour also resided in the home. An investigation revealed that the mother's paramour was a registered sex offender. Karessa's mother did not believe her paramour was a threat to her daughter and her grandchild. As a result, Karessa and K.C. were removed from the home and placed in the same foster home. On June 16, 2002, the court adjudicated K.C. as a child in need of assistance (CINA).
Karessa received a number of services from the Department, but failed to demonstrate that she has the ability to parent K.C. In addition, her continuing defense of and association with a known sex offender raised concerns regarding her ability to keep her son safe. During May of 2003, the Department indicated it intended to seek termination of the mother's parental rights.
Until the summer of 2003 Karessa refused to provide any information to the Department regarding K.C.'s paternity. In August of 2003, the Department determined that James was K.C.'s father. A case plan filed in August 2003 indicates that the father was aware that Karessa had given birth to a child, but did not make any effort to have contact with K.C. The Department initially moved to waive the requirement that reasonable services be provided to the father; however, the juvenile court concluded services should be provided. Beginning in August 2003, the following services were provided to James: family centered services, skill development services, random drug testing, psycho-social assessment, psychological assessment, visitation, and the opportunity for a sleep study.
On July 9, 2004, the State filed a petition to terminate Karessa and James's parental rights to K.C. Following a termination hearing, the juvenile court entered an order on November 9, 2004, terminating the father's parental rights pursuant to Iowa Code section 232.116(1)(h) (child three or younger, CINA, removed from home for six of the last twelve months, and cannot be returned home) (2003). The mother's parental rights were also terminated. Only the father has appealed.
II. Scope of Review
We review termination proceedings de novo. In re S.N., 500 N.W.2d 32, 34 (Iowa 1993). The grounds for termination must be proven by clear and convincing evidence. In re T.B., 604 N.W.2d 660, 661 (Iowa 2001). Our primary concern is the best interests of the child. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000).
III. Discussion
On appeal, the father claims the State failed to prove the statutory grounds for termination by clear and convincing evidence. He also claims the Department did not make reasonable efforts to reunite him with his child. We find no merit in either contention.
The juvenile court terminated James's parental rights under section 232.116(1)(h) (child three or younger, CINA, removed from home for six of the last twelve months, and cannot be returned home). In its termination order, the juvenile court cited a number of ongoing concerns about the father's ability to care for his son. James missed visits with his son because he overslept or could not be awakened at his home. He then failed to see a physician to address concerns that he might have some sort of sleep disorder. The court noted that K.C. often returned to his foster home from visits with his father hungry, dirty, and infested with head lice. James did not respond to a request to install a fence in order to protect his young son from traffic passing in front of his house. James does not always provide adequate food and drink for his son during his visits. The father remains dependent on others for transportation even though he has been offered a solution to this problem.
The State contends that error was not preserved on the father's challenge to the sufficiency of the evidence supporting the statutory grounds for termination relied on by the juvenile court. In support of this contention, the State points out that the father's sufficiency of evidence argument is directed to section 232.116(1)(i) rather that section 232.116(1)(h) — the section actually referred to by the court in its termination order. Although the State's argument appears to have merit, we will address the sufficiency of the statutory grounds relied on by the juvenile court.
James was born without legs. Although he has adapted reasonably well to his disability, he has failed to take advantage of an offer to adapt a car to meet his physical needs.
The court also expressed concerns regarding K.C.'s behavior before, during, and after visits with his father. K.C.'s foster parent testified that the child was fairly even-tempered, and did not exhibit many aggressive behaviors during his first year with her. However, after K.C. began visiting his father he started acting aggressively at home and at day care. In February and March of 2004, K.C. began putting his fists in his mouth and gagging himself to the point of vomiting. During a visit in June of 2004, K.C. "cried profusely" while visiting James, and then bit three children at day care immediately following the visit. In an attempt to determine the reason for K.C.'s behavior a visit was scheduled to occur at the Department's office; however, James did not appear for the visit. At that point, the Department suspended visits between K.C. and his father. The child's guardian ad litem and the Court Appointed Special Advocate volunteer concurred in this decision.
Upon our de novo review, we believe the record amply supports the juvenile court's concerns. While it is true that James has participated in services and done much of what has been asked of him, we agree with the juvenile court's ultimate conclusion that K.C. cannot not be safely returned to his father's care. K.C. has been in foster care for more than two years. Despite numerous services, James still requires significant oversight while parenting his son. We conclude the statutory grounds for termination have been met.
James also contends the Department did not engage in reasonable efforts to reunite him with his son. The State responds that error was not preserved on this issue. Prior to the termination of parental rights, the State has the obligation to offer reasonable services to preserve the family unit. In re H.L.B.R., 567 N.W.2d 675, 679 (Iowa Ct.App. 1997). A parent, however, has the responsibility to challenge or object to the services provided prior to the termination hearing. In re M.B., 595 N.W.2d 815, 818 (Iowa Ct.App. 1999). We find no indication in the record that James requested different or additional services prior to the termination hearing, and we determine he has failed to preserve error on this issue. Even if James had preserved error, the record reveals he received numerous services, but was unable to make the changes necessary to allow his son to be returned to his care.