Opinion
No. 4-087 / 03-2076
Filed February 27, 2004
Appeal from the Iowa District Court for Appanoose County, William S. Owens, Associate Juvenile Judge.
An alleged father appeals from an order terminating his parental rights to one child. AFFIRMED.
James Underwood of Underwood Law Office, Centerville, for appellant-father.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, and Robert F. Bozwell, Jr., County Attorney, for appellee-State.
Kenneth Duker, Ottumwa, guardian ad litem for minor child.
John Silko, Bloomfield, for mother.
Considered by Zimmer, P.J., and Miller and Hecht, JJ.
Brian appeals a December 11, 2003 order terminating his parental rights to Tristen, who was born in September 2002. We affirm.
The juvenile court also terminated the parental rights of Tristen's mother, April, and the parental rights of another possible father of Tristen, but neither appeals.
In February 2002 Brian, who had had sexual relations with eighteen-year-old April, heard that she was pregnant and that it might be his child. On or about April 1, 2002 Brian was imprisoned on sentences totaling six and one-half years for drug offenses. In October 2002 he became aware Tristen had been born. He nevertheless had no contact with April.
In December 2002 Tristen was removed from April's physical custody. Tristen was placed in the custody of the Department of Human Services (DHS) and foster family care. A child in need of assistance (CINA) case was commenced. The court appointed an attorney for Brian, and Brian received the CINA petition and notice of the CINA proceeding. The CINA petition named him as a potential father for Tristen. Brian made no contact with DHS or the court, and asserted no rights to Tristen.
A case permanency plan and court-ordered social report, both filed February 13, 2003, each recommended that Brian participate in any parenting courses offered at his place of incarceration and participate in any substance abuse treatment offered and provided in the prison setting. The juvenile court adopted the case permanency plan and social history in an April 7, 2003 ruling, and ordered the parties to comply with the responsibilities set forth in them. While he was incarcerated Brian was not aware of and did not attend any parenting classes. He did not, however, even inquire to find out if they were available.
A DHS social worker wrote to Brian on February 12, 2003, requesting that he fill out and return a social history questionnaire. The DHS did not receive it back or hear from him. The social worker was contacted by someone representing herself to be Brian's sister, who inquired how Brian could find out if he was Tristen's father. The social worker told her that Brian should contact the child support recovery unit or his attorney to get paternity testing done.
About June 2003 April wrote to Brian saying that Tristen looked like Brian and Brian might be his father. Brian did not respond. Brian got out of prison in July 2003. He did not contact the DHS or the juvenile court. It appears that he may have had brief and limited contact or communication with April.
The DHS became aware of Brian's release and wrote to him on August 15, 2003, stating that if he wished to be involved in Tristen's life in any way he needed to contact the DHS immediately to start services. Brian did nothing to request or start services.
On August 21 the State filed a petition to terminate parental rights and an order was entered setting a termination hearing for October 16. The sheriff served Brian on September 3. Brian did nothing for about one and one-half months. He then called the DHS social worker on October 23, just two weeks before the November 6 termination hearing. The social worker returned his call the next day. Brian said he was responding to the August 15 letter because his attorney had told him he should do so and had told him he should start visits with Tristen. In response to the social worker's question concerning what his intentions were, Brian said that he wanted to raise Tristen if he were found to be his father.
The hearing was subsequently continued to November 6.
The State then immediately began efforts to provide Brian with parent skill development classes. The first few sessions of that program are designed to assess needs, and Brian would only attend one session per week. When the termination hearing began on November 6 Brian had attended only two assessment sessions, arriving considerably late for one of the two. The termination hearing was not concluded on November 6, and was continued for further hearing on November 20. As of November 20 Brian had been scheduled to attend two additional sessions but had missed one. As a result, the sessions he had attended had dealt only with assessment of his needs and abilities and no skill development had yet commenced. In the opinion of the child resource specialist who had began working with Brian, based on the information provided to her in the assessment sessions Brian had never been in a parental role with any children and lacked knowledge of small children. As one example, she testified that when she asked him what he would do if a baby cried he said he guessed he would change her diaper but if it were soiled he would not want to do so and would have someone else do it.
Until the termination hearing Brian never admitted or acknowledged that he might be Tristen's father. He has never provided or attempted to provide any financial, emotional, or moral support to Tristen or April. Although the record is perhaps not clear on the point, it appears he has never visited or seen Tristen.
Brian testified he wished to have paternity testing done and believed it could be done in about a month. However, even though the methods to do so had been communicated to him as early as some time in early 2002, even as of the second and final day of the termination hearing he had apparently taken no affirmative steps to seek or secure such testing.
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).
Brian claims the State did not make reasonable efforts or provide reasonable services to reunify him with Tristen and return Tristen to his custody. For two reasons Brian is entitled to no relief on this claim.
The terms "reunify" and "return" clearly do not accurately reflect the facts, as Brian has never had any custody of or relationship with Tristen, and it appears likely he may have never even seen him.
First, there is no substantial evidence that he requested services other than those provided, and he has thus failed to preserve error on this issue. See In re C.B., 611 N.W.2d 489, 493-94 (Iowa 2000) (stating parents need to object to services early in the process so appropriate changes can be made); In re S.R., 600 N.W.2d 63, 65 (Iowa Ct. App. 1999) (holding that where parent did not demand services other than those provided the issue of whether services were adequate was not preserved for appellate review); In re J.L.W., 570 N.W.2d 778, 781 (Iowa Ct. App. 1997) (stating that in order to preserve error concerning reasonable efforts parents should demand services prior to the termination hearing, and challenges to services should be made when the case plan is entered).
Second, we find the services offered and provided were reasonable under the facts and circumstances of this case. Brian simply refused or failed to make himself available for services or to contact or communicate with the juvenile court, DHS, or service providers, until two weeks before the termination hearing. The State then took steps to immediately begin services. No more should be expected of the State under the circumstances created by Brian himself.
Brian next claims the State failed to prove Tristen could not be returned to him. This implicates the fourth element of the provision pursuant to which the juvenile court terminated Brian's parental rights, Iowa Code section 232.116(1)(h) (2003). The fourth element of that provision requires a showing that at the present time the child cannot be returned to the custody of the parent without meeting the definition of a child in need of assistance. In re M.L.W., 461 N.W.2d 609, 611 (Iowa Ct. App. 1990).
The State urges that the juvenile court also terminated Brian's parental rights pursuant to section 232.116(1)(b) (abandonment), and that because Brian does not challenge termination under that provision we need not address his section 232.116(1)(h) claim. The "order" portion of the juvenile court's ruling indicates that the termination petition is granted "pursuant to Iowa Code Section 232.116(1)(b) and (h)" and does not indicate which provision or provisions apply to each parent and/or alleged parent. However, from numbered paragraphs 4 and 3 of the "conclusions" portion of the ruling it appears that while the parental rights of April, Brian and another potential father were terminated pursuant to section 232.116(1)(h), only the parental rights of the other potential father were terminated pursuant to 232.116(1)(b). We therefore proceed to address the substance of this claim.
Brian's testimony regarding whether he felt capable of having custody of Tristen was inconsistent and conflicting. He did at one early point in his testimony state that what he was requesting was that he have custody of Tristen at some time in the future. He thus appeared to acknowledge, at least momentarily, that he was not capable of having Tristen's custody at the present time.
Tristen was less than fourteen months of age at the time of the termination hearing. Brian has no experience in a parental role. The evidence strongly supports the opinion of the service provider that Brian lacks necessary knowledge of small children. He has had no contact with Tristen, has no relationship with him, does not know him, and thus has no knowledge of his habits and needs. We conclude that at the time of the termination hearing Tristen could not be "returned" to Brian's custody without being a child in need of assistance. See Iowa Code § 232.2(6)(c)(2) (child who is imminently likely to suffer harmful effects as a result of the failure of the child's parent to exercise a reasonable degree of care in supervising the child).
Brian's final claim is that the termination of his parental rights is not in Tristen's best interest. Even if statutory requirements for termination are met, the decision to terminate must still be in the best interest of the child. In re M.S., 519 N.W.2d 398, 400 (Iowa 1994). Brian does not know Tristen. He does not have the experience, knowledge or ability to provide for his care. Tristen is in foster family care, apparently living in the same home he has lived in since his removal from April's physical custody in December 2002. He is adoptable. His foster parents are licensed to adopt and are interested in adopting him. He needs and deserves the stability, security, and permanency he will apparently acquire if Brian's parental rights are terminated. We agree with the juvenile court that Tristen's best interest requires termination of Brian's parental rights.