Opinion
No. 3-598 / 03-0971
Filed August 27, 2003
Appeal from the Iowa District Court for Des Moines County, Mark Kruse, District Associate Judge.
R.C. appeals from the termination of his parental rights. AFFIRMED.
Peter Hansen of the Hansen Law Office, Burlington, for appellant.
Thomas J. Miller, Attorney General, Tabitha Gardner, Assistant Attorney General, Patrick Jackson, County Attorney, and Pamela Dettmann, Assistant County Attorney, for appellee-State.
Steven Hahn of Schulte, Hahn Swanson, Burlington, for mother.
Alan Waples of Wittkamp Waples, Burlington, guardian at litem for minor children.
Considered by Huitink, P.J., and Vaitheswaran and Eisenhauer, JJ.
I. Background Facts Proceedings
Ricky and Heather are the parents of Courtney, born in December 2000, and Connor, born in November 2001. The parents have a history of substance abuse. The Iowa Department of Human Services became involved with the family in May 2002 when the parents were arrested on theft charges. Ricky was on probation at that time for possession of cocaine. His probation officer reported that Ricky had a drug test which was positive for cocaine. The children were removed from the home and placed in foster care. The children were adjudicated to be children in need of assistance pursuant to Iowa Code section 232.2(6)(c)(2) (Supp. 2001).
Ricky was placed in a halfway house, but again tested positive for illegal drugs, and in August 2002 his probation was revoked, and he was sent to prison. Prior to being placed in prison, Ricky did not participate in visitation with the children. While he was in prison he requested visitation. On February 5, 2003, the juvenile court ordered "the parents shall be provided supervised visits with the children." Ricky did not receive any visits with the children.
In March 2003 the State filed a petition for termination of the parents' rights. The termination hearing was held on three dates in April and May 2003. The court terminated the parents' rights under section 232.116(1)(h) (2003). The court noted that while Ricky indicated a desire to have the children placed in his care, he had engaged "in a course of behavior since their births by which he did everything possible to prevent this from happening." Ricky was still in prison at the time of the termination hearing and was not in a position to care for the children. Ricky appeals the termination of his parental rights.
II. Standard of Review
The scope of review in termination cases is de novo. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). The grounds for termination must be proven by clear and convincing evidence. In re S.R., 600 N.W.2d 63, 64 (Iowa Ct.App. 1999).
III. Reasonable Efforts
Ricky claims the State did not engage in reasonable efforts to reunite him with his children. In particular, he claims the Department should have permitted him visitation at the prison. Reasonable services must be provided to attempt to reunite a family before the State can terminate parental rights. In re L.M.W., 518 N.W.2d 804, 807 (Iowa Ct.App. 1994). The incarceration of a parent does not absolve the Department from providing reasonable services. In re S.J., 620 N.W.2d 522, 525 (Iowa Ct.App. 2000). Instead, the Department must assess the nature of its reasonable efforts obligation based on the circumstances of each case. Id.
On this issue the juvenile court stated:
In finding that the services were adequate, the court specifically takes into account the failure to provide at least some visitations at the prison site. While this could have been handled differently, the court is mindful of the very young age of the children, the father's huge contribution to this visitation problem, the understandable limitations on prison visits, and the children's obvious bonding to the people who do their direct care.
We agree with the juvenile court's conclusions. We also note that Ricky did not participate in visitation when he had the opportunity prior to being sent to prison. In these particular circumstances, we determine the State engaged in efforts which were reasonable under the facts of this case.
We affirm the decision of the juvenile court.
AFFIRMED.
Eisenhauer, J., concurs; Vaitheswaran, J., concurs specially.
I specially concur. The majority concludes that the Department satisfied its reasonable efforts mandate. I write separately to express my reservations concerning this conclusion.
Three months after Connor's removal, the juvenile court noted that both parents were in residential facilities. The court ordered the Department to provide supervised or unsupervised visits at its discretion and advised the parents they could apply for further hearing on the issue.
Ricky later had his probation revoked and was sent to prison. In response to his attorney's request, the juvenile court ordered the Department to provide "supervised visits with the children." The Department did not implement this order. More than two months after it was entered, a social worker opined, "[t]his writer does not feel it is in the children's best interest to be transported over an hour or more for a short visit with either parent." As the juvenile court stated,
To the extent that the visits were discretionary, the conclusory explanation that a DHS supervisor did not feel it appropriate is an inadequate explanation for the exercise of discretion. After the visits were specifically ordered, no explanation was forthcoming as to why visits were not arranged.
I concur with the juvenile court's conclusion that the Department does not have discretion to ignore the dictates of an explicit order. However, because Ricky failed to become minimally fit during the period from removal to permanency, I agree with the majority's decision to affirm the termination of his parental rights to Connor. See In re C.B., 611 N.W.2d 489, 494-95 (Iowa 2000).