Opinion
No. 2-943 / 02-1603
Filed January 29, 2003
Appeal from the Iowa District Court for Polk County, Constance Cohen, Associate Juvenile Judge.
Appellant father appeals the juvenile court's termination of his parental rights to his children under Iowa Code sections 232.116(1)(d), (1)(f), and (1)(i) (2001). AFFIRMED.
Dennis Bjorklund of Bjorklund Law Firm, P.C., Coralville, for appellant.
Thomas J. Miller, Attorney General, Tabitha Gardner, Assistant Attorney General, John Sarcone, County Attorney, and Martha Johnson, Assistant County Attorney, for appellee-State.
Amy Kepes of Youth Law Center, Des Moines, guardian ad litem for minor child.
Heard by Sackett, C.J., and Zimmer and Vaitheswaran, JJ.
Appellant father Barrion appeals the juvenile court's termination of his parental rights to his children, Torrie and Tyler, under Iowa Code sections 232.116(1)(d), (1)(f), and (1)(i) (2001). Barrion argues on appeal 1) the juvenile court erred in denying his motion for a continuance to postpone termination proceedings pending a decision on his CINA appeal; 2) there was insufficient evidence the State made reasonable efforts toward reunification; and 3) the juvenile court erred in placing the children with Barrion's sister, Leola. We affirm.
Torrie, born December 2, 1987, and Tyler, born July 3, 1990, were the children of Barrion and Candace. Barrion and Candace divorced in 1995. The parties were given joint custody, with Candace having primary physical care. Barrion contends Candace often prevented him from exercising his visitation rights and that he sought mediation and a court order to enforce his visitation rights.
Torrie was reportedly sexually abused at age three, telling her parents her babysitter's husband touched her "privates." In September of 2000 Torrie reported Barrion played a tickling game in which Barrion would tickle her buttocks over her clothes and say, "booty, booty." Some of the time he would also reach around between her legs toward the front of her body. In late December of 2000 Torrie also accused Barrion of forcing her to have sexual intercourse with him in 1997 and 1998, when she was about ten years old. Torrie further reported Barrion had shown her pornographic pictures. At this time Torrie also alleged she had been sexually active with a "Ricco" in sixth grade, had been pregnant twice and had had two abortions, although she later altered that account, claiming only one pregnancy which ended in miscarriage. A temporary no-contact order between Barrion and his two children was issued December 29, 2000. The Des Moines Police Department investigated the sexual abuse allegations but concluded there was insufficient credible evidence to pursue criminal charges.
In the summer of 1999 Torrie had become associated with a new assistant track coach whose relationship with Torrie was suspect. Barrion apparently reported the coach to the Department of Human Services in February of 2000, and then again in May or June of that year. Barrion argues it was in retaliation for his accusations against the coach that Torrie began accusing him of sexual abuse.
The two were eventually separated by a no-contact order in March of 2001.
On May 16, 2001, Torrie and Tyler were adjudicated children in need of assistance (CINA) under Iowa Code sections 232.2(6)(c)(2) and (j), and in a later October 31 adjudication, 232.2(6)(d). We affirmed those adjudications. See In re T.S. and T.S., No. 02-121 (Iowa Ct.App. Jan. 29, 2003). According to Susan Claussen, Barrion was provided individual therapy from April 2001 to December 2001. Because he demonstrated an unwillingness to address the problems between his children and him, he was encouraged to continue individual therapy under his own insurance plan. Additionally, he was offered therapy sessions with his daughter present. Ms. Claussen also testified she offered to locate non-admitting offender counseling, but that Barrion had stated in response he would not cooperate with that treatment either. Following hearings on June 21 and July 11, 2002, Barrion's parental rights to Torrie and Tyler were terminated September 10, 2002. Barrion appeals that termination.
Such treatment may not even be available in Iowa.
We review terminations of parental rights de novo. In re E.B.L., 501 N.W.2d 547, 549 (Iowa 1993). We review the facts and the law and adjudicate the parents' rights anew. Id. We give weight to the fact findings of the juvenile court, but we are not bound by those findings. Id. Our primary consideration in termination proceedings is the best interest of the children. Id.; Iowa R.App.P. 6.14(6)( o)).
Barrion first argues the juvenile court was in error to deny his motion for a continuance on the termination pending decision on appeal of the CINA adjudications. Barrion contends parental rights are lost and judicial resources are wasted when terminations are considered before CINA appellate decisions are made. We conclude this issue is moot, as we have rendered a decision in the CINA appeal and can therefore consider the CINA and termination petitions in the order Barrion argues they should be considered. "An issue is moot if it no longer presents a justifiable controversy because it has become academic or nonexistent." In re B.B., 516 N.W.2d 874, 877 (Iowa 1994) (quoting In re Meek, 236 N.W.2d 284, 288 (Iowa 1975)).
Barrion's second argument is that the State did not offer him reasonable services prior to termination. The State must make reasonable efforts to provide services to a parent before termination proceedings may be instituted. Iowa Code § 232.102(7), 10(a); In re C.B., 611 N.W.2d 489, 492-93 (Iowa 2000). Barrion claims the only services offered him by the State would have required that he admit to sexual abuse. Barrion has maintained he is innocent of sexual abuse and has refused only to participate in services requiring him to admit to such activity.
The State counters that it did make reasonable efforts to provide Barrion with services, that Barrion failed to comply even with non-admitting offender treatment. The State further argues Barrion made no efforts to maintain consistent contact with DHS, school officials, or the children's therapists.
It appears from the record that, although the State did inquire into non-admitting offender treatment, that particular treatment was unavailable. It also appears, however, that Barrion stated to Ms. Claussen he was not interested in participating in therapy of any kind. The record further supports the State's argument that Barrion made little effort to maintain consistent contact with DHS, in spite of the efforts of DHS to remain in contact with him through phone calls and letters. Furthermore, Barrion did not contest the services he was offered as inadequate at the time they were offered. In general, a parent who fails to request particular services at an appropriate time waives his right to challenge those services at the termination proceeding. See In re C.H., N.W.2d ___ (Iowa 2002). If a parent is dissatisfied with services, the parent must make this known at the removal, when the case permanency plan is entered, or at later review hearings. Id. Voicing complaints regarding the adequacy of services to a social worker is not sufficient. Id. A parent must instead inform the juvenile court of such challenge. Id. Because Barrion waited until the termination hearing to challenge the services, we conclude he may not challenge their sufficiency. Id. We affirm on this issue.
Barrion lastly contests the placement of Torrie and Tyler with Leola, his half-sister. The record shows Torrie is currently living at a shelter. Barrion argues it is clear Leola is not a suitable guardian for the children, as there are too many people in her house and she has too many responsibilities, including a full-time job and college classes. Barrion further contends Leola cannot properly supervise Torrie, as Torrie has acquired a twenty-year-old boyfriend while at Leola's and has had to be put in a shelter. The juvenile court was aware of these problems and had the opportunity to observe other potential caretakers. It nevertheless concluded the children were benefited when in the custody of their aunt Leola in a familiar environment. We concur.