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In the Interest of A.N

Court of Appeals of Iowa
Feb 12, 2003
662 N.W.2d 375 (Iowa Ct. App. 2003)

Opinion

No. 3-074 / 02-1985

Filed February 12, 2003

Appeal from the Iowa District Court for Des Moines County, Michael Dieterich, Associate Juvenile Judge.

A father appeals an order terminating his parental rights to one child. AFFIRMED.

Peter Hansen, Burlington, for appellant father.

Thomas J. Miller, Attorney General, Tabitha Gardner, Assistant Attorney General, and Pamela Dettmann, County Attorney, for appellee-State.

Andrew Hoth, Burlington, for mother.

Brent Ruther, Burlington, guardian ad litem for minor child.

Considered by Vogel, P.J., and Miller and Eisenhauer, JJ.


A father appeals the termination of his parental rights to his three-year-old son, Anthony. He claims: (1) the juvenile court erred by effectively requiring him to request services before the permanency hearing is held; and (2) the evidence does not support a finding there were reasonable efforts to reunite him with his son.

We review termination proceedings de novo. Although we are not bound by them, we give weight to the trial court's findings of fact, especially when considering credibility of witnesses. The primary interest in termination proceedings is the best interests of the child. To support the termination of parental rights, the State must establish the grounds for termination under Iowa Code section 232.116 by clear and convincing evidence.

In re C.B., 611 N.W.2d 489, 492 (Iowa 2000) (citations omitted).

A somewhat detailed recitation of events is necessary to consider and resolve the issues presented.

Lester and Samantha are the unmarried parents of Anthony, born in November 1998. Lester has subsisted on SSI benefits for some ten years, as he is disabled by bi-polar affective disorder. At the time of Anthony's birth and for about one year thereafter Lester and Samantha and Anthony lived with Samantha's brother and his wife and their children in Burlington. Lester then left. He moved to Davenport, where he had grown up. From 1999 until some time after the child in need of assistance proceedings began in April 2001 Lester had essentially no contact with Anthony. During that time he spent two months in jail on a theft-related probation revocation.

Samantha consented to the termination of her parental rights to Anthony.

In April 2001 the State filed a petition seeking an adjudication that Anthony was a child in need of assistance (CINA). An April 30 case permanency plan recited as a goal that Anthony remain in Samantha's home. Lester's responsibilities included providing financial support to assist Samantha in meeting the basic needs of Anthony, cooperating with the Department of Human Services (DHS) and providing the court and DHS with information as to his whereabouts, and completing or providing a recent psychological evaluation to the DHS.

By the time of a May 2001 hearing the State's recommendation had changed to requesting Anthony be placed in the custody of Samantha's brother and his wife, with whom Anthony had resided most of his life. The juvenile court so ordered, and notified Anthony's parents that his removal from the parents' custody could lead to termination of parental rights, and that a failure to identify a deficiency in services or to request additional services might preclude them from challenging the sufficiency of services in a termination of parent-child relationship proceeding.

A June 22, 2001 case permanency plan listed a goal of returning Anthony to the care and custody of Samantha, while cautioning that if she was unable to provide a stable home environment the goal might be changed to relative care and/or termination of parental rights. It again included in Lester's responsibilities providing financial support to Samantha for Anthony, keeping DHS informed of his whereabouts, and completing or providing a recent psychological evaluation. A July 24 order, following a June 28 hearing, adjudicated Anthony a CINA, ordered Lester to cooperate and participate in a psychological evaluation, and again notified the parents of the potential consequences of Anthony's removal and of a failure to request additional services. August 15, 2001, and March 6, 2002 case permanency plans contained the same goals and responsibilities. August 30, 2001, and March 12, 2002 orders continued the CINA adjudication, contained the same orders for a psychological evaluation, and again notified the parents of the potential consequences of Anthony's continued removal and a failure to request additional services.

On March 15, 2002, the DHS requested a permanency hearing to propose termination of parental rights, and the court set a hearing for April 17. On April 16 the hearing was continued to May 15. The State prepared a new case permanency plan dated May 13, 2002. It requested a change in goal from reunification to termination of parental rights. On May 14, the last day before the rescheduled permanency hearing, Lester served and filed a psychiatric evaluation which he had only recently had performed.

A permanency hearing began on May 15. Exhibits were admitted, including the recent case permanency plan. Samantha, and Anthony's attorney and guardian ad litem, agreed with the request to change the goal to termination. Lester objected, and requested custody of Anthony. There was insufficient time to complete the hearing and it was continued to June 25, 2002. Following completion of that permanency hearing the juvenile court made extensive and detailed findings and conclusions, changed the permanency goal to termination of parental rights, ordered the county attorney to institute proceedings to terminate the parent-child relationship, and relieved the DHS from providing further reunification services to Anthony's parents.

Giving due deference to the juvenile court's findings of fact, including credibility determinations which are inherent in some of its findings, certain facts are established by the record. DHS staff discussed the case plans and their contents with Lester at each court hearing. He has never provided Samantha with financial support for Anthony (other than perhaps twenty dollars on one occasion). Lester did not provide a psychological or psychiatric evaluation until almost a full year after it was requested and well after the DHS had made known its intention to seek termination of parental rights. He moved to Burlington in April 2002 but, contrary to the case plan, did not let DHS know of his whereabouts. Later, in the fall of 2002 and after the termination petition had been filed, he again moved and again did not let the DHS know of his whereabouts.

Lester was free to visit Anthony essentially any time he wished by simply letting Anthony's maternal uncle know he wished to visit, but rarely if ever took steps to arrange visitation. Instead, he left it up to his girlfriend to seek and arrange visitations. Even then his visitations were sporadic and somewhat infrequent, sometimes occurring only once or twice in a period of up to three months.

Lester has a lengthy history of abusing marijuana, but did testify he had not used for about one year. His girlfriend of several years, with whom he lives, testified that Lester does not take charge of doing things for himself, and if it's not written down he forgets things. He spends his days watching TV.

In the period of thirteen months from the filing of the CINA petition until the May 15, 2002 hearing Lester never requested that he be considered a potential custodian for Anthony. In the period of over fourteen months from the CINA petition until the concluding segment of the permanency hearing on June 25, 2002, Lester at no time raised any issue concerning deficiency in services or requested different or additional services. Then, during the second day of that hearing he testified he was requesting parenting classes, increased visits, and homemaker services. This request came some three and one-half months after the DHS indicated, on March 15, 2002, it proposed changing the goal to termination of parental rights.

He had in fact been allowed unlimited visits.

Citing In re H.L.R.B., 567 N.W.2d 675, 679 (Iowa Ct.App. 1997) and In re C.D., 508 N.W.2d 97, 101 (Iowa Ct.App. 1993), Lester in essence argues he was entitled to make his request for different or additional services at any time prior to the termination of parental rights hearing, and the juvenile court erred in not ordering such services after he requested them during the concluding day of the permanency hearing.

In re H.L.R.B., citing In re D.C., does state in part, "[I]t is the parent's responsibility to demand services if they are not offered prior to the termination hearing." See In re H.L.R.B., 567 N.W.2d at 679. However, In re C.D. does not say a demand for services may be made anytime before the termination hearing. Rather, it in fact states, "[A] parent's challenge to services should be made when they are offered." See In re C.D., 508 N.W.2d at 101. Subsequent cases, all citing In re C.D., are consistent with this language. See In re J.L.W., 570 N.W.2d 778, 781 (Iowa Ct.App. 1997) ("Challenges to services should be made when the case plan is entered."); In re C.W., 522 N.W.2d 113, 117 (Iowa Ct.App. 1994) ("A parent's challenge to services should be made when they are offered."); In re L.M.W., 518 N.W.2d 804, 807 (Iowa Ct.App. 1994) ("Challenges to the plan for reunification should have come when the plan was entered.").

We conclude Lester's request for additional services, first made more than fourteen months after the CINA case began and during a hearing to determine whether to change the permanency goal to termination of parental rights, was untimely. We therefore further conclude the juvenile court did not err in relieving the DHS from providing further reunification services when it changed the permanency goal to termination as a result of that hearing.

Lester also claims the evidence does not support a finding there were reasonable efforts to reunite him with Anthony. Reasonable services must be offered to preserve the family unit. In re L.M.W., 518 N.W.2d at 807. The reasonable efforts requirement is not a strict substantive requirement for termination of parental rights, but rather the scope of the efforts by the DHS to reunify parent and child after removal impacts the burden of proving termination elements which require reunification efforts. In re C.B., 611 N.W.2d at 493. The State must show reasonable efforts as part of its proof the child cannot be safely returned to the care of a parent. Id.

Lester has never been Anthony's primary caretaker. During this case he was provided with unlimited visitation with Anthony, but visited somewhat sporadically, infrequently, and inconsistently. During visitations he did not feed Anthony, participate in meals, bathe Anthony, clothe him, or otherwise provide any substantial care.

Lester had little or no contact with Anthony from late 1999 until May 2001, and he has a history of mental illness and substance abuse. These facts apparently led the DHS and juvenile court to require that he provide a psychological evaluation. It would appear this requirement was to some significant extent designed to help determine what services he needed and what services might reasonably and advantageously be provided to him. Lester failed or refused to provide the ordered evaluation until more than a year after the CINA proceeding began, two months after the DHS indicated it intended to seek termination, and a month after the date a permanency hearing was originally scheduled.

Until the permanency hearing Lester had never expressed an interest in having custody of Anthony. Until the June 25, 2002 conclusion of the permanency hearing the goal of the CINA proceeding had always been to reunite Anthony with Samantha, the only parent who had ever provided substantial care for him. Until that date Lester had never sought a change in that goal, nor had he ever requested different or additional services or efforts to reunify him with Anthony. We conclude that under the facts and circumstances of this case the juvenile court did not err in its finding and its conclusion, made after the permanency hearing, that reasonable reunification services had been provided and reasonable efforts had been made to reunify Anthony with his mother and father.

AFFIRMED.


Summaries of

In the Interest of A.N

Court of Appeals of Iowa
Feb 12, 2003
662 N.W.2d 375 (Iowa Ct. App. 2003)
Case details for

In the Interest of A.N

Case Details

Full title:IN THE INTEREST OF A.N., Minor Child, L.N.,Father, Appellant

Court:Court of Appeals of Iowa

Date published: Feb 12, 2003

Citations

662 N.W.2d 375 (Iowa Ct. App. 2003)