In the Interest of E.S.R. and E.R., Minor Children, E.R., Father

• Court: Court of Appeals of Iowa
• Decided: February 25, 2015
• Docket: 14-1917
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 14-1917 Filed February 25, 2015

IN THE INTEREST OF E.S.R. AND E.R., Minor Children,

E.R., Father, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Winnebago County, Karen K. Salic,

District Associate Judge.

The father appeals the juvenile court’s termination of his parental rights to

his children, E.S.R. and E.R. AFFIRMED.

Jane M. Wright, Forest City, for appellant father.

Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant

Attorney General, Adam D. Sauer, County Attorney, and Andrew Olson,

Assistant County Attorney, for appellee State.

Theodore Hovda, Garner, attorney and guardian ad litem for minor

children.

Considered by Vogel, P.J., and Doyle and McDonald, JJ. 2

VOGEL, P.J.

The father appeals the juvenile court’s termination of his parental rights to

his children, E.S.R. and E.R. He asserts the State failed to prove by clear and

convincing evidence grounds to terminate his parental rights under Iowa Code

section 232.116(1)(f) and (h) (2013), and claims that he should have been

granted an additional six months to work towards reunification. He further argues

termination was not in the children’s best interest, nor did the State undertake

reasonable efforts to prevent termination. We conclude that the father’s

untreated mental health issues, combined with his extensive and violent criminal

history, established grounds to terminate his rights under paragraphs (f) and (h).

Furthermore, given he was already granted one six-month extension of time in

order to work towards reunification, additional time is not warranted. The juvenile

court also properly found termination was in the children’s best interests, and

reasonable efforts were made on the part of the State. Therefore, we affirm the

termination of the father’s parental rights.

E.S.R., born April 2010, and E.R., born December 2011, first came to the

attention of the Department of Human Services (DHS) due to the mother’s

methamphetamine use. The children were removed from the home on January

10, 2013, and placed with the maternal grandmother.1 The children were

adjudicated in need of assistance on March 8, 2013.

1 Three other children, who share the same mother as E.S.R. and E.S., were also removed from the home; however, they are not part of this appeal. Additionally, at the time of the termination hearing, the children had been removed from the grandmother’s home and placed in foster care. 3

E.S.R. and E.R. had little to no contact with the father prior to their

removal, as the father was incarcerated from June 2011 until August 31, 2013.

This incarceration was due to the father’s conviction for domestic abuse assault

causing injury—in May of 2011, he beat the mother with a vacuum cleaner and a

stroller until each item broke, causing the mother to suffer several broken bones

and lacerations. Although E.S.R. was present during the assault, she was an

infant and sleeping upstairs, and the mother was pregnant with E.R.

The father was also convicted of domestic abuse in 2010 and was the

perpetrator of a founded child abuse report for denial of critical care. In this

instance, he beat the mother and another woman with his fists and a lawn chair

and both suffered injuries. He also chased around one of the mother’s other

children in a threatening manner, before being stopped by a neighbor.

Additionally, the juvenile court noted the father had other prior contact with DHS:

In 2005 he was identified as the perpetrator of two incidents of physical abuse. In 2007 he was identified as the perpetrator of Denial of Critical Care (supervision) . . . and of physical abuse . . . . In 2009 he was identified as the perpetrator of physical and sexual abuse, and three counts of Denial of Critical Care.

The father’s other criminal convictions include possession of marijuana, third or

subsequent offense; possession of drug paraphernalia; public intoxication;

interference with official acts causing bodily injury; false report to law

enforcement; and operating while intoxicated.

Two months following his release from prison, in October 2013, the father

contacted DHS. He explained the delay in contacting the agency was allegedly

due to a no contact order in place for the protection of the mother and the

children. A supervised visit was arranged and the father visited the children on 4

October 25, 2013. Because he was in prison when E.R. was born, this was the

first time the father had seen her. The father participated in approximately

twenty-three visits over the course of these proceedings, though he never

progressed to non-supervised or overnight visitation. During his time with the

children, the DHS worker reported he parented them appropriately, and it was

evident he and the children developed a bond; however, the DHS worker had

concerns with regard to how he would act when alone with the children, given his

lack of patience and untreated mental health issues.

The father has several mental health issues that remain largely

unaddressed. He was diagnosed with borderline personality disorder,

schizophrenia spectrum disorder (due to his unusual thoughts, perceptions, and

likely hallucinations and delusions), and a learning disorder. In a psychological

evaluation dated January 29, 2014, the psychologist also noted the father had

several symptoms of bipolar disorder, but was short of meeting the full diagnostic

criteria. Though the father participated in some mental health classes while in

prison, such as an anger management course, he did not follow through with

receiving consistent counseling; nor did he regularly take medication to combat

his disorders, asserting his doctor took him off the medications.

Despite these mental health problems, the father has pursued

employment following his release from prison. He became employed at a

construction company in January 2014, and shortly before the termination

hearing, secured a different job working in a hog confinement. DHS workers

testified the father failed to maintain contact with the agency such that the

father’s employment could be consistently verified. 5

The father has also moved a number of times since his release from

prison. At the termination hearing, he testified he had moved into the mother’s

trailer three weeks prior, and that she had moved to Texas to live with her father.2

Additionally, because the father repeatedly refused DHS’s requests that he

provide his address, he did not receive various family team meeting notes and

family safety, risk, and permanency (FSRP) reports over the course of these

proceedings. Even as recent as the July 21, 2014 permanency review hearing,

the father refused to reveal where he was living. Just prior to the termination

hearing, he provided DHS with an address.

In November 2013, almost one year before the termination hearing, the

matter came on for a permanency review hearing. At the father’s request, he

was granted an additional six months to work towards reunification. However,

the father made only minimal progress, and the State filed a petition on July 18,

2014 requesting the juvenile court terminate his parental rights to E.S.R. and

E.R. A termination hearing was held on October 28, 2014, and the juvenile court,

after finding the father had “squandered the past six months,” issued an order

terminating the father’s rights under Iowa Code section 232.116(1)(f) with respect

to E.S.R., and paragraph (h) with respect to E.R.3 The father appeals.4

2 A DHS worker testified the mother and father were very secretive about their relationship and that they had a stillborn child in the spring of 2014. The juvenile court noted: “Both [the father and the mother] have engaged in deception, elusiveness and at times out-right dishonesty throughout this case. It is very difficult to find them credible about their progress since they have been so dishonest about everything else.” 3 The State initially filed the petition requesting the father’s rights to both children be terminated under paragraph (f), but then moved to amend the petition to substitute paragraph (h) for E.R. The juvenile court granted the motion in its termination order. Though it cited paragraph (f) as the grounds to terminate the father’s rights to E.R. in its final conclusions of law, in its analysis and findings of fact, the court concluded the father’s rights to E.R. should be terminated under paragraph (h). Thus, while the father 6

We review termination proceedings de novo. In re S.R., 600 N.W.2d 63,

64 (Iowa Ct. App. 1999). The grounds for termination must be proved by clear

and convincing evidence. Id. Our primary concern is the child’s best interest. Id.

To terminate the father’s rights under Iowa Code section 232.116(1)(f), the

State must prove by clear and convincing evidence that the child is four years of

age or older, has been adjudicated a child in need of assistance (CINA), has

been removed from the home for the last twelve consecutive months, and cannot

be returned to the father’s custody. To terminate the father’s rights to E.R. under

paragraph (h), the State was required to show E.R. was three years old or

younger, adjudicated CINA, removed from the home for at least six of the last

twelve months, and there is clear and convincing evidence she cannot be

returned to the father’s care. See Iowa Code § 232.116(1)(h).

Upon review of the record, we agree with the juvenile court the children

cannot be returned to the father’s care within the meaning of paragraphs (f) and

(h). The father has a significant and violent criminal history, in addition to

concerning mental health issues that remain untreated, and, for the most part,

unacknowledged by the father. It is particularly telling that in the twenty-two

months in which the case was pending, the father could not progress beyond

supervised visits. Furthermore, the DHS worker noted concerns with the father’s

failure to acknowledge the impact of his abusive history, as well as questioned

contends on appeal that the wrong code section was used, it is clear when viewing the totality of the order that the court terminated the father’s rights to E.R. under the proper paragraph, that is, (h). 4 The juvenile court also terminated the mother’s parental rights to these children. The mother filed a notice of appeal but, due to the lateness of the petition, her appeal was dismissed pursuant to Iowa Rule of Court 6.201(1)(b). 7

his ability to appropriately parent the children if left alone. While we commend

the father for finding employment and making some effort to improve his life, he

has been unable to identify and address safety issues that impact the children.

He also has not been open to engaging in most of the recommended services

that would aid in reunification. With unresolved issues inhibiting even

unsupervised visits, it is clear from this record the children would suffer harm if

returned to his care.

Furthermore, granting the father an additional six months to work towards

reunification will not serve to correct the situation. As the juvenile court noted:

[The father] has a very long record of child abuse and violence against women. He continues to minimize his actions and has resisted all efforts to ensure that he has the skills necessary to not harm a child or woman in the future. His patience wears thin with the children during even a short supervised visit. As [the DHS worker] noted, batterers are unreceptive to change, and without constant and meaningful work, it is unlikely [the father] will respond any differently to frustration, lack of control and stress any differently than he has in the past.

The record reflects the court’s assessment, and we further note that when

judging the future actions of a parent, his past conduct is instructive. See In re

J.E., 723 N.W.2d 793, 798 (Iowa 2006). The father has not made any

meaningful progress since his release from prison with regard to addressing his

mental health issues and past violent behavior. This fact persisted throughout

the course of these proceedings, despite the numerous opportunities to receive

counseling and other mental health support services offered through DHS.

Consequently, we agree with the juvenile court the children cannot be returned to

the father’s care, and, given the father’s lack of progress, additional time would

not serve to correct the situation. 8

Termination of the father’s rights is also in the children’s best interests.

Though they do share a bond with the father, and the father parents them

appropriately during supervised visits, we agree with juvenile court’s assessment

that the father’s “choices and his lack of participation throughout the life of the

CINA cases have prevented him from being a constant presence in [the

children’s] lives, let alone a father.” We also note the importance of the DHS

worker’s testimony that the father’s actions—such as his violent criminal history

and lack of mental health treatment—indicate it is better if he is not the children’s

caregiver. Therefore, termination is in the children’s best interests, and the

parent-child bond consideration does not preclude termination. See Iowa Code

§ 232.116(2), (3).

The father further contends reasonable efforts by DHS were not

implemented, and therefore the juvenile court erred in terminating his parental

rights. Specifically, he cites the fact he did not receive the FSRP reports and

provider notes until late in the case, and that no case plan was ever provided to

him. However, as the July 28, 2014 DHS meeting notes indicated, the father did

not provide DHS with his address until just two months before the termination

hearing. Therefore, the documents could not be mailed to him—except to his

last known address, which was outdated information—though they were filed with

the court upon completion or in time for the review hearings. With regard to the

case permanency plan, the court stated that the plan was merely captioned

differently, and so the father “argues form over function, which is not important to

any consideration necessary in this matter.” Given these facts, we do not agree 9

with the father’s assertion that reasonable efforts were not offered such that the

juvenile court erred in terminating his rights.

After reviewing the father’s arguments, we affirm the juvenile court’s order

terminating the father’s parental rights to E.S.R. and E.R. pursuant to Iowa Code

section 232.116(1)(f) and (h), respectively.

AFFIRMED.