Opinion
23-1204
10-25-2023
IN THE INTEREST OF M.M., Minor Child, R.S., Father, Appellant.
Mary M. Lauver of Lauver Law, Lake City, for appellant father. Brenna Bird, Attorney General, and Tamara Knight, Assistant Attorney General, for appellee State. Gregory H. Stoebe of Stoebe Law Office, Humboldt, attorney and guardian ad litem for minor child.
Appeal from the Iowa District Court for Webster County, Joseph L. Tofilon, District Associate Judge.
A father appeals the termination of his parental rights to his child.
Mary M. Lauver of Lauver Law, Lake City, for appellant father.
Brenna Bird, Attorney General, and Tamara Knight, Assistant Attorney General, for appellee State.
Gregory H. Stoebe of Stoebe Law Office, Humboldt, attorney and guardian ad litem for minor child.
Considered by Tabor, P.J., Buller, J., and Mullins, S.J. [*]
MULLINS, SENIOR JUDGE.
A father appeals the termination of his parental rights to his child-born in 2017-under Iowa Code section 232.116(1)(f) (2023). He argues the Iowa Department of Health and Human Services did not make reasonable efforts at reunification, challenges the sufficiency of evidence supporting the ground for termination, asserts termination is contrary to the child's best interest because "there is not sufficient evidence regarding [their] bond," and argues the juvenile court "erred in finding that an additional period of time would not allow for reunification."
I. Background
The child was removed from the mother's custody in June 2021 due to domestic violence between the mother and a man she shared another child with. The whereabouts of the father were generally unknown. According to the department's removal affidavit, the mother thought he was in South Carolina. The State filed a child-in-need-of-assistance petition. The father was served by publication. While he didn't appear at the ensuing adjudication hearing, he was represented by counsel. The child was adjudicated in need of assistance in September.
At this point, no legal or biological father had been established for the child. It was not until June 2023 that the father was confirmed as a parent through paternity testing.
The record shows the child was born to the parents in South Carolina in 2017. The mother and child left South Carolina in 2018, when the child was roughly six months old. The father has not been in the picture since.
The father's whereabouts remained unknown for some time. The department regularly asked the mother to provide his contact information, but she never did. In June 2022, the department located an address for him in South Carolina and sent him a letter directing him to contact the department as soon as possible. There was no response, nor was the letter returned as undeliverable. That same month, the juvenile court granted a six-month deferral of permanency based on the mother's progress toward reunification. That time eventually ran out, and the father's whereabouts remained unknown. So, in January 2023, the State filed a petition to terminate both parents' rights.
According to the father's testimony, the mother knew all of his contact information, including his address. However, he agreed that, after the mother left South Carolina in 2018, he "was living in Florida until about 2020, 2021" before he returned to South Carolina. He couldn't opine why the mother never gave the department his information, but he thought maybe she was "being bitter and don't want [the child] around" him.
A termination hearing was held over three days in February and March. On the first day of the hearing on February 8, the juvenile court noted termination as to the father would be "continued to a different date due to an issue with service." The termination hearing proceeded as to the mother and the men she shared other children with. During the hearing, one of the social workers testified she had no contact with the father for the entirety of the proceedings.
On the second day of the hearing on February 24, the mother testified the father has never been in the picture to help raise the child. On cross-examination by the father's counsel, the mother testified she recently spoke to the father through social media while she was at a visit with the child. The mother noted the father was on Facebook, but she didn't know his phone number. The mother testified that one of the visitation supervisors was present when she was speaking with the father. While the mother agreed with the father's counsel that the supervisor did not ask for the father's contact information, the mother did not testify that the supervisor even knew she was talking to the father. While the father wasn't present at the hearing, the mother stated the father knew about the proceedings and, while she didn't think the father knew his parental rights were in jeopardy, she had directed him to contact his attorney in Iowa.
The father was thereafter located and provided with call-in information for the third day of the hearing on March 28. He didn't call in until about an hour after the hearing started. Later in the hearing, the father testified he was not aware of the proceedings until that very day. He also stated the mother knew his phone number and address but believed she concealed it from the department to keep the child away from him. After the hearing, the court entered an order authorizing paternity testing for the father. Later, it entered an order terminating the mother's parental rights.
The mother's rights were also terminated to the child's two half-siblings, as were the rights of the putative fathers. This court later affirmed termination of the mother's rights. See generally In re M.M., No. 23-0618, 2023 WL 4533301 (July 13, 2023).
In late April, the father filed a "motion for additional services." He asserted he was not aware his parental rights were at risk until late March and, since then, "the department has been slow to implement reasonable efforts." The motion requested, among other things, expedited paternity testing, the commencement of a study of his South Carolina home under the Interstate Compact on the Placement of Children (ICPC), video visits, regular updates about case progression, the provision of parenting resources and in-home services, and an immediate return of the child to his custody. The court set that motion for hearing. However, the father later requested it be considered in conjunction with the June termination hearing, noting the department "has started working on the requests . . . as laid out in the motion."
At the termination hearing, the department caseworker testified she had no contact with the father prior to the time that he surfaced in March. When she was able to talk to him a few days later, the father "just explained that he had had contact with [the mother] and he didn't realize how serious the situation was." The father "did know that [the child] was in foster care at that time, but he thought [the mother] was getting [him] back." After the worker explained the severity of the situation, the father advised he would participate in services.
As to services that were provided, the caseworker testified she obtained the father's contact information on March 28, the first day he participated in the proceedings. That same day, she also asked the court to order paternity testing so she could proceed with a relative home study of the father's home. After the court authorized it, the caseworker immediately took steps to arrange for out-ofstate paternity testing. On April 12, the worker was advised by the testing agency that testing was scheduled for May 3-which the worker stated she had no control over-and she immediately notified the father and his counsel of the same.
The caseworker sent the father a contract of expectations in late April. While the father confirmed he received it, he never signed and returned it. The worker testified she took it upon herself to maintain at least weekly contact with the father. On or about April 27, the department began providing the father with video visits and "virtual solution-based focus meeting sessions." The worker testified the visits have not gone well, however, because the child doesn't want to participate. The in-home provider who participates in the visits seconded that testimony.
Initially, the worker could not initiate the ICPC home study until she obtained the results of paternity testing. Because she didn't want to wait any longer, she facilitated a "work around" by initiating a non-relative study on the father. The worker requested all of the necessary information from the father on May 3. The father did not return all of the requested information until more than one month later, despite the worker sending him weekly requests and reminders. The department made the ICPC referral a few days after it received all the necessary information from the father. But the caseworker testified she had no knowledge as to when South Carolina officials would actually start the study, noting "[s]ometimes they can take up to a month or so." As to when the study would be completed, the worker opined: "Possibly August, maybe September. It could be longer. Different states take different time frames, but hopefully by September time frame."
The caseworker testified the department couldn't really know what services the father needed until South Carolina completed its investigation. Based on selfreports from the father, the worker opined he would benefit from mental-health treatment due to post-traumatic stress issues, and she would request a substanceabuse evaluation since the father "has been drinking heavily according to what he had shared with the in-home provider." And while the department requested photos and details about the father's living environment so it could begin assessing the father as a placement pending ICPC, the father did not provide the requested information.
To the caseworker's knowledge, while the mother did leave the father when the child was roughly six months old, the mother maintained contact with the father thereafter and the father knew where they were living in Iowa. She also understood the father knew the child was in the foster-care system and that the department was involved, but he never reached out to request services. There was certainly disputed testimony about when the father became aware of the proceedings. What is undisputed is that the father did not-in the several years between when the mother and child left South Carolina in 2018 and when he appeared telephonically for the termination hearing for the mother in March 2023-take any action to regain custody of the child or otherwise be meaningfully involved in his life.
At the conclusion of the termination hearing for the father, he requested additional time to work toward reunification. The State and guardian ad litem argued reunification within six months was not possible. The department recommended proceeding with termination "because it does not appear that six more months would be feasible to reunify." Even assuming the father passed the ICPC study within six months, the caseworker testified:
I still believe that there is probably some other concerns for safety in the home as far as alcohol usage, being able to provide for the child, potentially some mental health issues that we need to know more about. And I also feel that the getting on top of parenting tasks and being involved and engaged has been so slow to happen ....
The worker added that the child's
bond is with his siblings and with his foster parents. That's his family, that's who he knows as his mom and dad. And he also has a bond with his siblings. So he is currently receiving his school, medical, mental health services in a safe, stable, permanent placement. And I think that it's really important that we continue to maintain those connections and services for him.
The worker later explained the foster parents were serving as a pre-adoptive placement for the child and both of his siblings.
In its ruling, the juvenile court found the child could not be returned to the father's custody for various reasons, so termination was authorized under Iowa Code section 232.116(1)(f). The court treated the father's various complaints about how "he has not been given a real chance to reunify" as a reasonable-efforts challenge. The court essentially reasoned that the father could not use his alleged lack of knowledge of the proceedings as a shield when the father demonstrated prolonged inattention to the child before the proceedings even started. In other words, the father would have had plenty of time to participate in services had he ever had any meaningful interest in the child and taken action. The court found termination was in the child's best interests given his lack of a relationship with the father and his integration into his pre-adoptive foster home, where he is thriving. The court concluded no permissive exceptions to termination applied. As to the father's request for more time, the court was "unable to find any likelihood that the need for removal of the child will no longer exist at the end of an additional six-month period." So the court terminated the father's parental rights, and this appeal followed.
II. Standard of Review
We review termination proceedings de novo. In re A.B., 956 N.W.2d 162, 168 (Iowa 2021); In re C.Z., 956 N.W.2d 113, 119 (Iowa 2021). Our primary consideration is the best interests of the child, In re J.E., 723 N.W.2d 793, 798 (Iowa 2006), the defining elements of which are the child's safety and need for a permanent home. In re H.S., 805 N.W.2d 737, 748 (Iowa 2011).
III. Discussion A. Reasonable Efforts
Beginning with the father's reasonable-efforts challenge, he generally argues the department's failure to obtain his contact information or provide meaningful services until forty-five days before the termination hearing shows the department abdicated its duty to make reasonable efforts at reunification. We address each of his complaints in turn.
The father first complains that, while he was not present for most of the proceedings, the department knew he was on a video call with the mother during a supervised visit "and made no attempt to retrieve contact information during that time to make contact with [him] and put into place services for him." The record belies the father's claim of inaction by the department. While the mother testified she spoke with the father during a supervised visit in early 2023, that visit was not supervised by the department. And while the mother noted the supervisor was present when she talked to the father, she did not say the supervisor even knew she was talking to the father. So the father is wrong that the department had "this opportunity to retrieve contact information, which they failed to utilize," and we reject the father's argument that efforts were unreasonable on this point.
The mother provided the name of who was supervising. The record indicates that person was an independent social worker.
Second, the father complains the department "made no effort to place the child with family in South Carolina." But, as the caseworker testified and the father appears to acknowledge, a child cannot be placed across state lines until the ICPC process is completed. We are therefore unable to conclude the department's efforts were unreasonable here.
Third, the father argues the department "has not provided any funds for the father to have in person visits in Iowa." To the contrary, the caseworker testified the parties explored the option of providing the father with airline tickets and hotel accommodations to come to Iowa, but the father's work schedule didn't allow him to. This was a reasonable effort at facilitating in-person visits between the father and child.
Fourth, the father complains the department "did not provide the ICPC application to [him] until May 2, . . . over a month after initial contact was made." But the caseworker specifically testified the ICPC process could not initially be started until paternity testing was completed, and scheduling for out-of-state testing was out of her hands. While paternity testing was not completed until June, the department took steps to get the ball rolling on the ICPC process in early May by requesting the information from the father necessary to start a non-relative study. The father did not provide the department with all of the necessary information to start the referral until June. We find the department's efforts were reasonable under the circumstances.
Fifth, the father complains the department "only had one brief phone call with [him] in the first month after initial contact." The record does not support this claim of unreasonableness either. A few days after the caseworker received the father's contact information, she spoke with him for about an hour and advised him about the case and the severity of the situation. From there, although it may not have all been direct communication over the phone, the department maintained regular contact with the father and kept tabs on him through the in-home provider. We disagree with the father that the department's efforts were unreasonable.
Sixth, the father complains the department "did not create a contract of expectations" until late April. But the department did so almost immediately after the father requested one in his motion for additional services. The father confirmed he received it, but he never signed and returned it. And the worker essentially testified she couldn't just pull a contract of expectations out of a hat, as the father's counsel seemed to suggest. The worker explained: "[W]he had just met him. You just can't create a contract of expectations for someone without knowing any of their needs or having any information on what they could possibly have for expectations." These efforts were reasonable under the circumstances.
Seventh, the father complains the department "didn't conduct paternity testing until May 3," and the results of the testing were not received until June 8, . . . only 20 days prior to the termination hearing." As discussed, the department immediately arranged for out-of-state testing after the court authorized it. Scheduling of that testing and when the results would be received was entirely out of the department's hands. And the caseworker testified she proceeded under the assumption that he was the biological father. The department's efforts were reasonable.
Lastly, the father complains the department "never conducted a solutions focused meeting, formally known as a family team meeting with the father despite his request." But the caseworker testified "a solution-focused meeting could have taken so long it wouldn't have been timely." So, instead, the caseworker "did it informally" through a staffing, "where we addressed what he needed, [with] the contract of expectations, and we got right on services." Although it may not have been as formal as the father would have liked, the department reasonably took the steps necessary to expedite and maximize services within the small window of time that was available.
In all, we conclude the department's efforts were "reasonable under the circumstances," In re S.J., 620 N.W.2d 522, 525 (Iowa Ct. App. 2000), in light of the services provided and the father's response, see In re C.B., 611 N.W.2d 489, 494 (Iowa 2000).
B. Ground for Termination
Turning to the father's challenge to the sufficiency of evidence supporting termination under section 232.116(1)(f), he does not expressly argue that the State failed to meet its burden to prove any of the elements. To the extent he challenges the final element, clear and convincing evidence need only show that the child could not be returned to his custody at the time of the termination hearing. See Iowa Code § 232.116(1)(f)(4) (requiring clear and convincing evidence that children cannot be returned to parental custody "at the present time"); In re D.W., 791 N.W.2d 703, 707 (Iowa 2010) (interpreting the statutory language "at the present time" to mean "at the time of the termination hearing").
We agree with the juvenile court that the child could not be placed in the father's custody. For starters, the child could not be placed across state lines without completion of the ICPC process. But, more importantly, the father has had essentially no involvement with the child for roughly six years, and they share no bond. The father would need to prove himself a capable parent and develop a bond with the child before the child could be placed in his custody. We affirm on this point.
C. Best Interests and Permissive Exception
The father also argues the juvenile court erred in "finding clear and convincing evidence that termination of [his] parental rights was in the best interest of the child pursuant to Iowa Code section 232.116(2) because there is not sufficient evidence regarding such bond due to guardian ad litem not fulfilling duties under Iowa Code section 232.2(25)(b)."
The father does not address how the best-interest factors in section 232.116(2) weigh against termination, so neither do we. That leaves us with the father's reference to a bond and the claim that he and the "child are growing a bond." This implicates the permissive exception to termination in section 232.116(3)(c), which authorizes the court to forgo termination when "[t]here is clear and convincing evidence that the termination would be detrimental to the child at the time due to the closeness of the parent-child relationship." The father argues "we know very little about the bond between [him] and the child because the child was not given an opportunity to have a voice" and the guardian ad litem failed to properly investigate the bond.
As to the child's preference, that falls under a different exception that only applies to children over ten years of age. See Iowa Code § 232.116(3)(b). And the child did have a voice. He made it very clear that he didn't even want to participate in virtual visits with the father. As to the father's complaint about the guard ad litem's investigation, the burden was on the father-not the guardian ad litem-to prove the exception applied. In re A.S., 906 N.W.2d 467, 476 (Iowa 2018). The father did not show termination would be detrimental to the child. To the contrary, the evidence shows the child would suffer detriment if he was placed in the father's custody, as that would tear him away from the people he views as his family, including his siblings.
D. Deferral of Permanency
As to his request for additional time, the father appears to fault the mother for limiting his involvement in the proceedings and the department for not working harder to obtain accurate contact information for him. But those circumstances have nothing to do with whether the child can be returned to the father's custody within six months. Regardless of what happened in the past, a six-month extension is appropriate only if the parent can establish that "the need for removal . . . will no longer exist at the end of the additional six-month period." Iowa Code § 232.104(2)(b); accord In re W.T., 967 N.W.2d 315, 323 (Iowa 2021).
As with his reasonable-efforts challenge, the father continues to fault the department for not getting his contact information during a supervised visit. As noted, that visit was not supervised by the department. We find the department's efforts to locate the father were reasonable under the circumstances.
The father acknowledges the completion of a study under the ICPC-which "takes a significant time for the department to conduct"-remains a barrier to reunification. However, he submits that, while completion of the study "is out of [his] hands," it was expected to be completed within six months of the termination hearing and there was "no significant evidence" to show he wouldn't pass the study. He thinks that, as soon as he passes, the "child could then be placed in his care . . . and the department could close the case." But, even if the father does pass, ICPC completion is not the only remaining barrier to reunification. As noted, the father still needs to prove himself a capable parent and develop a bond with the child before the child could be placed in his custody. Given the father's long absence from the child's life, this would certainly take longer than six months. Even if there were no impediments to placement in six months, "we must also consider whether the further delay is in [the child's] best interests." W.T., 967 N.W.2d at 323. Given the child's integration into his pre-adoptive placement with his siblings, where he is thriving, we conclude allowing the father additional time would be contrary to the child's best interests. See Iowa Code § 232.116(2)(b); W.T., 967 N.W.2d at 324 (finding extension was not in child's best interests where she "and her half sister are currently placed together with foster parents willing to adopt both girls"). Proceeding with termination now-following two years of formal removal and six years of the father's absence-will provide the child with the permanency to which he has long been entitled.
IV. Conclusion
We affirm the termination of the father's parental rights.
AFFIRMED.
[*]Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2023).