Opinion
No. 3-353 / 03-0536
Filed June 13, 2003
Appeal from the Iowa District Court for Marshall County, Timothy J. Finn, Judge.
A father appeals the juvenile court's decision terminating his parental rights to a child. AFFIRMED.
Randal Giannetto of Mowry, Irvine Giannetto, Marshalltown, for appellant-father.
Chad Frese of Fairall, Fairall, Kaplan, Condon Frese, Marshalltown, for appellant-mother.
Thomas J. Miller, Attorney General, Tabitha Gardner, Assistant Attorney General, James J. DeTaeye, County Attorney, and Susan Klaessy, Assistant County Attorney, for appellee-State.
John Swain, Marshalltown, guardian ad litem for minor child.
Considered by Sackett, C.J., and Huitink and Vogel, JJ.
Richard, the father of Sierra, born August 8, 1994, has filed a petition on appeal challenging the March 12, 2003 juvenile court decision terminating his parental rights to the child. He asks that the termination be reversed or that it be returned for full briefing. He contends the State failed to show reasonable efforts were made to establish contact or reunite him with the child. We determine the matter can be adequately reviewed without full briefing. We affirm.
We review termination proceedings de novo. In re S.N., 500 N.W.2d 32, 34 (Iowa 1993). Although we are not bound by them, we give weight to the trial court's findings of fact, especially when considering credibility of witnesses. Iowa R.App.P. 6.14( f)(7); In re M.M.S., 502 N.W.2d 4, 5 (Iowa 1993).
The child's mother filed an untimely appeal and is not a party to these proceedings. The State has elected to file a "Statement of Nonresponse" where it alleges "the record clearly supports the termination and any response would only serve to reiterate the facts of the case."
The mother contended she was a member of an Indian tribe and the evidence would show this to be true. She had contended that the matter should be considered by applying the Indian Child Welfare Act. Evidence shows she raised the issue in a motion asking that the record be re-opened to allow evidence of an apparent change in the tribal definition of a child eligible for membership in the tribe. This issue is not before us and we cannot address it. However, any prospective adoptive parents should be advised the termination could be invalidated if there was a showing that such action violated provisions of the act. See in re J.W., 498 N.W.2d 417, 419 (Iowa Ct.App. 1993).
Sierra was removed from her mother's custody and put in a foster care home following allegations of neglect and sexual abuse in March of 2001. Sierra remained in foster care at the time of the termination hearing.
Richard was in prison at the time of the termination hearing and had virtually no contact with Sierra at any time during her life.
Richard contends he raised the issue of reasonable efforts at trial. He does not claim to have raised it earlier. The juvenile court did not address it.
The requirement of reasonable efforts exists both to protect rights of parents and children. See In re C.B., 611 N.W.2d 489, 493 (Iowa 2000). The scope of the efforts by the Department of Human Services to reunify parent and child after removal impacts the burden of proving those elements of termination which require reunification efforts. Id.; see also In re B.K.K., 500 N.W.2d 54, 57 (Iowa 1993); In re L.H., 480 N.W.2d 43, 46 (Iowa 1992). The State must show reasonable efforts as a part of its ultimate proof the child cannot be safely returned to the care of a parent. C.B., 611 N.W.2d at 493.
Richard failed to timely demand services. See In re H.L.B.R., 567 N.W.2d 675, 679 (Iowa Ct.App. 1997); In re C.D., 508 N.W.2d 97, 101 (Iowa Ct.App. 1993). He did not challenge the reasonableness of reunification services at the CINA proceedings and did not appeal the adjudication. See In re M.T., 613 N.W.2d 690, 691-92 (Iowa Ct.App. 2000). Furthermore, there is no evidence that even with the delivery of services to Richard that Sierra could be placed in his care. We affirm.