In the Interest of B.H.

517 N.W.2d 715, 1994 Iowa App. LEXIS 32, 1994 WL 246726
CourtCourt of Appeals of Iowa
DecidedMarch 24, 1994
DocketNo. 93-1358
StatusPublished
Cited by1 cases

This text of 517 N.W.2d 715 (In the Interest of B.H.) is published on Counsel Stack Legal Research, covering Court of Appeals of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In the Interest of B.H., 517 N.W.2d 715, 1994 Iowa App. LEXIS 32, 1994 WL 246726 (iowactapp 1994).

Opinions

SACKETT, Judge.

The question in this appeal is whether we should affirm the juvenile court’s August 6, 1993, decision terminating the father’s parental rights to Blake, born on July 25, 1985, and Randy, born on March 8, 1987. The father contends it is in the children’s best interest his rights not be terminated and the case should be remanded to the juvenile court to take further evidence. The State disagrees, contending the best interests of the children require affirmance.

Randy and Blake first came to the attention of the authorities when their mother, Karen, in late March 1987, failed to adequately supervise them. Jim, this appellant, was incarcerated at Mt. Pleasant, Iowa. On July 27, 1987, Randy and Blake were found to be children in need of assistance. There were a number of services offered to Karen, including a parent connection volunteer, homemaker services and monitoring, and counseling. Karen, born in 1964, was determined to have special needs herself.1

Karen, during the termination hearing, voluntarily relinquished her parental rights and is not a party to this appeal. Jim, incarcerated at the time of the termination hearing, objected to termination of his rights.

Jim was living with Karen when Blake was born in 1985. Jim was taken into custody on November 22, 1985, for an offense of burglary in the second degree. In January 1987, Jim was sentenced to prison. Randy was born in March 1987. In October 1987, Jim was released from jail and returned home. Jim began working with the Department of Human Services and was able to successfully stabilize the family in such that court supervision of the family was terminated in June 1989. Within four months, Jim was arrested for assaulting Karen. Jim, by his own admission, said he slapped her around and left a bruise on her neck from grabbing her there. Although Jim was on parole for his [716]*716burglary offense, his parole was not revoked based on the domestic abuse that occurred.

In June 1990, Jim was taken into custody for two additional felony offenses. Jim has remained in custody since his arrest. He ultimately was sentenced with a discharge date of 1998. Jim appeared in front of the parole board in December 1992, with a recommendation from his counselor that he be released on parole but the request was denied. He again appeared before the parole board in December 1993.

In October 1991, Jim filed an application for visitation and requested the children be brought to Anamosa, claiming he had made such a request with the department and it had not been granted. The department resisted because the foster parent was single and not able to transport the boys to Anamo-sa. The court granted visitation but the father’s parents never facilitated the visitation.

In its order terminating parental rights, the juvenile court outlined the history of Jim’s involvement with the legal system. It found Jim was denied parole in December 1992, was not eligible for parole until December 1993; and, even if then released, would have to stay at a work release center for three months.

The juvenile court found the ease demonstrates Jim, when available, can provide some adequate care for the children. The court also found Jim shows little understanding of the children’s needs and minimizes their behavior problems and left the care of the children with the mother despite the fact he recognizes her deficiencies.

The juvenile court further found:

Jim’s history of self-indulgence and poor judgment argues eloquently that he will continue in his same patterns.
Although his attempts to keep in contact with his children are admirable, those attempts will never substitute for the care and nurturance that these children need now.

The State argues termination of parental rights is in the children’s best interest because it is doubtful the father can parent the children, and the children need permanency. The State’s brief makes only one reference to the record in support of its argument. On oral argument, the State contended there is urgency because any delay in terminating parental rights makes adoption less likely.

The State’s brief makes no effort to address the serious and complex problems this court and the juvenile court and the guardian ad litem2 faced in attempting to weigh the perplexing issues concerning these children’s futures.

The future for these children is not bright whether their parental rights are or are not terminated. The guardian ad litem advanced he did not think the children were adoptable at the time of the termination hearing and made the following recommendation:

These children have been waiting for a long time for a permanent home as has been pointed out today. I don’t feel that the petitioner has shown that it would be in the children’s best interest, however, to terminate the parental rights with their father. There’s been no showing that he’s not capable of earing for the children or won’t be at some point after his release. The only thing that’s barred him from taking a more active role in this case, I think, has been his incarceration and he was incarcerated before the latest child in need of assistance petition was filed.
I’m impressed with the fact that he’s done everything he can to keep in contact with these children. I think it remains to be seen at what point or what happens once he is released. These children are going to be, apparently they have a need to be in therapeutic foster homes that they’re in to be separated at the present time. I was opposed to that initially and I’ve talked it over with Ms. Mohling. We both agreed initially to try and keep them together in the same therapeutic foster home. That didn’t work out. Apparently at least some great progress is being made [717]*717with Randy and some is being made with Blake now.
I don’t think these children would be adoptable at this time anyway. I think they need to be where they’re at for the time being. I think Mr. Howard needs to get himself out of prison, get himself established, re-establish his relationship with these children. I know it’s going to be a lengthy process, but I don’t think it’s fair to anybody to terminate his parental rights at this time.

Our review of the record reveals there is substantial support for the guardian ad literal's opinion the children are not adoptable.

A foster family specialist from Four Oaks reported as follows:

[T]hat aside from behavioral difficulties that Randy and Blake experience with each other is that Randy’s behavior is especially difficult to manage in a foster home. First, he is destructive to property and has already inflicted much damage to the foster home. Additionally, he does not listen to the foster parents, and he wanders at night, which has lead to inadequate rest for the foster parents. One may anticipate that as Randy gets older his ADHD and lower intellectual functioning will make it more difficult to maintain him in a family setting.

The University of Iowa Hospitals and Clinics reported the following about Randy:

Concerns: hyperactivity, impulsivity, poor sense of danger, history of fire setting, fighting with brother, borderline IQ, history of failure to thrive.

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Related

In the Interest of H.H.
528 N.W.2d 675 (Court of Appeals of Iowa, 1995)

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Bluebook (online)
517 N.W.2d 715, 1994 Iowa App. LEXIS 32, 1994 WL 246726, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-interest-of-bh-iowactapp-1994.