Opinion
No. 1-980 / 01-1032.
Filed March 13, 2002.
Appeal from the Iowa District Court for Fayette County, ALAN D. ALLBEE, Associate Juvenile Judge.
A father appeals a juvenile court order terminating his parental rights. AFFIRMED.
Richard K. Betterton, of Snow, Knock, Sevick, Betterton Hinze, Cedar Falls, for appellant.
Thomas J. Miller, Attorney General, and M. Elise Pippin, Assistant Attorney General, and Jay D. Villont, Assistant County Attorney for appellee-State.
Larry Woods, Oelwein, for minor children.
Considered by HUITINK, P.J., and ZIMMER and VAITHESWARAN, JJ.
A father appeals a juvenile court order terminating his parental rights to three children. We affirm.
I. Background Facts and Proceedings
Billy and Jamie are the parents of Ashley, born in 1994, Heather, born in 1995, and Max, born in 1998. Both parents struggled with supervising and appropriately disciplining their children.
Shortly after Heather's birth, the Department of Human Services (department) issued a confirmed child abuse report against the parents for denial of critical care. Services were initiated to address their parenting skills. The department issued a second confirmed child abuse report two years later for injuries sustained by both children. The juvenile court adjudicated the two children in need of assistance but ordered that they remain in their parents' care. The court also ordered the family to participate in psychological evaluations. Billy's evaluation revealed that he suffered from depression and had "intellectual limitations." In light of these limitations, the evaluator recommended the department tape record all parenting instructions for him, a recommendation that the department did not follow.
Meanwhile, Max was born and the juvenile court also adjudicated him in need of assistance. Billy, who by this time had divorced Jamie but was living with her sporadically, sought and obtained a juvenile court visitation order.
Jamie and Billy continued to have trouble parenting and the children began to manifest delayed development as well as behavioral problems. The juvenile court ordered the children placed in foster care but rejected the department's request to deny visitation with the parents. Notwithstanding this order, the department curtailed visitation between Billy and the children. Both parents continued to receive services to enhance their parenting skills.
Billy struggled with depression, low self-esteem, anger, learning disabilities, financial problems, alcohol abuse, and serial relationships with high school girls. Jamie chose to leave Iowa.
The State initiated termination proceedings. Before the hearing, the State moved to amend its petition to add an additional statutory ground for termination. The juvenile court denied Billy's motion for continuance. Following a hearing at which the mother did not appear, the court terminated both parents' rights vis-a-vis the three children. For Billy, the court relied on Iowa Code sections 232.116(1)(e) (child four or older cannot be returned to home); (f) (parent's rights to another child were terminated and parent does not respond to services); and (g) (child three or younger cannot be returned to the home) (1999). Only Billy has appealed. We review his appeal de novo. Iowa R. App. P. 6.4.
Billy earlier consented to the termination of his parental rights to a fourth child, born to one of his high school girlfriends.
II. Reasonable Efforts
Billy's primary argument is that, by curtailing visitation with his children, the department violated its statutory reasonable efforts mandate. See Iowa Code § 232.102(7),(10)(a); In re C.B., 611 N.W.2d 489, 492-93 (Iowa 2000). The juvenile court addressed this issue in its termination order, stating that the department suspended the father's visitation for two periods of time, contrary to the court's visitation order "and without any authority." Despite its evident displeasure with the department's unilateral action, the juvenile court concluded that the improper suspension did not jeopardize reunification, given the lengthy history of problems.
Like the juvenile court, we are troubled by the department's flagrant violation of a court order, particularly when combined with its refusal to implement the psychologist's taping recommendation. However, the record reflects the department made other efforts toward parental reunification over an extended period of time, without success. These efforts included ongoing parenting skills training, family therapy, and counseling. Given these other efforts, we cannot conclude that the department's violation of the visitation order mandates reversal.
III. Return of Children
Billy next argues that the State failed to prove the children could not be returned to his care, as required by Iowa Code sections 232.116(1) (e), (f), and (g). He suggests he "was the glue that held the family together."
There is no question Billy was attached to the children and got along well with them during the visitations the department allowed him to have. However, despite years of services, Billy had not resolved his parenting deficiencies. A psychologist who treated him stated he did not recommend having the children placed in Billy's home until he could demonstrate more consistent parenting skills. A family therapist noted that while Billy had made some positive changes, he continued to live a chaotic lifestyle, with "lots of changing sexual partners, a lot of reports of break-ins to his apartment, and reports of substance abuse." In light of this and other evidence in the record, we agree with the juvenile court's conclusion that "to return the children to their father's home at this time would subject the children to the following adjudicatory harms: lack of proper supervision resulting in harm and lack of proper care due to their father's mental condition and substance abuse."
IV. Ineffective Assistance of Counsel
Billy contends his trial attorney was ineffective in failing to object to the State's witnesses on foundational grounds. He maintains these witnesses were experts that needed to be properly qualified before testifying. Our highest court has permitted ineffective assistance of counsel claims in termination proceedings. See In re J.P.B., 419 N.W.2d 387, 390 (Iowa 1988). The court has generally applied the same standard applicable in criminal proceedings: whether counsel's performance is deficient and whether actual prejudice resulted. In re A.R.S., 480 N.W.2d 888, 891 (Iowa 1992).
We are not persuaded that trial counsel was ineffective in failing to object to the testimony of the State's witnesses. First, we believe the witnesses called by the State were fact witnesses rather than expert witnesses. However, even assuming they were experts, courts have wide latitude in ruling on opinion and expert testimony. In re Long, 313 N.W.2d 473, 482 (Iowa 1981). Under this broad standard, the foundation testimony elicited by the State was sufficient to support admission of their opinions.
V. Trial Continuance
Billy contends the juvenile court should have continued the trial when the State sought to amend its termination petition. We review rulings on requests for continuances for abuse of discretion. In re Marriage of Titterington, 488 N.W.2d 176, 179-80 (Iowa Ct. App. 1992).
The State moved to add Iowa Code section 232.116(1)(e) as an additional ground for termination. The only difference between this ground and subsection (g), which had already been pled, was the age of the child and the length of time for removal. These elements were undisputed. The amendment did not inject new issues into the proceedings and, therefore, did not prejudice Billy. Id. Therefore, we find no abuse of discretion in the court's ruling.
AFFIRMED.