IN THE COURT OF APPEALS OF IOWA
No. 20-0748 Filed July 22, 2020
IN THE INTEREST OF H.T., Minor Child,
W.T., Father, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, Rachael E. Seymour,
District Associate Judge.
A father appeals the termination of his parental rights to his child.
AFFIRMED.
Judy Johnson of JDJ Law Firm PLLC, Des Moines, for appellant father.
Thomas J. Miller, Attorney General, and Charles K. Phillips, Assistant
Attorney General, for appellee State.
Alexandra Nelissen, Des Moines, attorney and guardian ad litem for minor
child.
Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ. 2
VAITHESWARAN, Presiding Judge.
A father appeals the termination of his parental rights to his child, born in
2017. When the child was one year old, his mother voluntarily placed him with
friends. The child remained in their care throughout the proceedings.
In time, the mother gave birth to another child. Following the birth, the
mother tested positive for several illegal substances. The department intervened,
and the newborn, as well as the older child who is the subject of this appeal, were
formally removed from the mother’s custody.
Paternity testing subsequently confirmed the identity of the older child’s
father. He was in prison, having violated his special sentence of lifetime parole
following his guilty plea to third-degree sexual abuse of a minor. He remained
incarcerated throughout the child-in-need-of-assistance proceeding and
termination hearing. He did not expect to discharge his sentence until 2023. He
essentially conceded he was not in a position to have the child returned to his
custody at the time of the termination hearing but argued his relatives were willing
and able to serve as caretakers.
The juvenile court determined that “none of the Father’s proposed relatives
would be an appropriate placement.” The court terminated the father’s parental
rights pursuant to Iowa Code section 232.116(1)(h) (2019), which requires proof
of several elements including proof the child cannot be returned to the parent’s
custody.
On appeal, the father does not challenge the ground for termination cited
by the juvenile court. He contends (I) the court should have placed the child in a
guardianship with one of his relatives as an alternative to termination; 3
(II) termination of his parental rights was not in the child’s best interests; and
(III) the department of human services failed to timely notify and investigate his
relatives as potential placement options.
I. Placement with a Relative
Iowa Code section 232.117(3)(c) authorizes post-termination placement of
a child with several entities or persons, including a “relative.” In finding the father’s
relatives inappropriate, the juvenile court noted that an aunt who came forward
tested positive for cocaine; the father’s sister failed to provide a drug screen and
did not “testify regarding her willingness to assume custody”; and the father’s
grandmother lived with the relative who tested positive for cocaine, was “69 years
old and would be in her mid-80’s when [the] child would graduate from high school,”
and apparently intended to allow the father to assume custody “after he was
released from prison,” notwithstanding his conviction for sexual abuse of a minor.
The father takes issue with these findings.
The juvenile court’s finding that the aunt was not an appropriate placement
option was supported by the record. The father conceded as much.
The court’s finding as to the father’s sister was more problematic. The
father identified her as a potential placement months before the termination
hearing. The department social worker overseeing the case stated he performed
a background check, which “did not” disclose any concerns. He also checked the
abuse registry, which disclosed no concerns. He spoke to the sister and told her
he would be requesting a drug screen. He acknowledged that he failed to follow
up until a few days before the termination hearing. At that point, the sister told him
she could not come in for the drug test because of work obligations. The social 4
worker identified a time on the next day. The sister said she would have to check.
That was the extent of the department’s investigation into the sister before the first
day of the termination hearing.
The termination hearing did not end after the first day. It continued for
another two days over a seven-week period. On the third day, the department
employee testified the sister had yet to come in for a drug test. That testimony
supports the juvenile court’s finding that the child could not be placed with the
father’s sister.
We are left with the father’s grandmother. She testified that, although she
lived with the aunt who tested positive, she had plans to relocate in the immediate
future. In her words, “I’m intending to get my own place, so I can have more room
and everything.” She also stated that the department employee overseeing the
case did not contact her about having the child placed with her until sixty days
before the final day of the termination hearing. At the same time, she minimized
the culpability of her grandson in the crime that led to his conviction.
The department employee testified the grandmother was excluded as a
placement option because of her unwillingness to acknowledge her grandson’s
guilt. We are persuaded the department’s rationale was reasonable. The father
was precluded from having any contact with minors and, although the grandmother
testified she would abide by the no-contact order, her comments about her
grandson suggested otherwise.
On our de novo review of the record, we conclude the juvenile court
appropriately declined to place the child in a guardianship with one of the father’s
relatives. 5
II. Best Interests
Termination must be in the child’s best interests. See Iowa Code
§ 232.116(2). The father contends the child’s best interests were not served
because the connections with his family were “severed.” But the severance was
of his own making. The father committed a crime against a child. As noted, he
was ordered to have no contact with any children until he completed treatment,
which he had yet to begin. When asked whose fault it was that he did not have a
chance to raise his son, he responded, “Ultimately, it’s my fault that I have not
taken full consideration—or full responsibility.” On our de novo review, we
conclude termination was in the child’s best interests.
III. Reasonable Efforts
The department has an obligation to make reasonable efforts to reunify
parent and child. See In re C.B., 611 N.W.2d 489, 492–93 (Iowa 2000). At the
time of the termination hearing, the father informed the juvenile court that he
wished to challenge the department’s reasonable reunification efforts and,
specifically, its failure to pursue placement options with his relatives. The father
tangentially raised the question of the department’s statutory obligation to notify
relatives of the proceedings. We will begin with that obligation.
Iowa Code section 232.84(2) states:
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IN THE COURT OF APPEALS OF IOWA
No. 20-0748 Filed July 22, 2020
IN THE INTEREST OF H.T., Minor Child,
W.T., Father, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, Rachael E. Seymour,
District Associate Judge.
A father appeals the termination of his parental rights to his child.
AFFIRMED.
Judy Johnson of JDJ Law Firm PLLC, Des Moines, for appellant father.
Thomas J. Miller, Attorney General, and Charles K. Phillips, Assistant
Attorney General, for appellee State.
Alexandra Nelissen, Des Moines, attorney and guardian ad litem for minor
child.
Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ. 2
VAITHESWARAN, Presiding Judge.
A father appeals the termination of his parental rights to his child, born in
2017. When the child was one year old, his mother voluntarily placed him with
friends. The child remained in their care throughout the proceedings.
In time, the mother gave birth to another child. Following the birth, the
mother tested positive for several illegal substances. The department intervened,
and the newborn, as well as the older child who is the subject of this appeal, were
formally removed from the mother’s custody.
Paternity testing subsequently confirmed the identity of the older child’s
father. He was in prison, having violated his special sentence of lifetime parole
following his guilty plea to third-degree sexual abuse of a minor. He remained
incarcerated throughout the child-in-need-of-assistance proceeding and
termination hearing. He did not expect to discharge his sentence until 2023. He
essentially conceded he was not in a position to have the child returned to his
custody at the time of the termination hearing but argued his relatives were willing
and able to serve as caretakers.
The juvenile court determined that “none of the Father’s proposed relatives
would be an appropriate placement.” The court terminated the father’s parental
rights pursuant to Iowa Code section 232.116(1)(h) (2019), which requires proof
of several elements including proof the child cannot be returned to the parent’s
custody.
On appeal, the father does not challenge the ground for termination cited
by the juvenile court. He contends (I) the court should have placed the child in a
guardianship with one of his relatives as an alternative to termination; 3
(II) termination of his parental rights was not in the child’s best interests; and
(III) the department of human services failed to timely notify and investigate his
relatives as potential placement options.
I. Placement with a Relative
Iowa Code section 232.117(3)(c) authorizes post-termination placement of
a child with several entities or persons, including a “relative.” In finding the father’s
relatives inappropriate, the juvenile court noted that an aunt who came forward
tested positive for cocaine; the father’s sister failed to provide a drug screen and
did not “testify regarding her willingness to assume custody”; and the father’s
grandmother lived with the relative who tested positive for cocaine, was “69 years
old and would be in her mid-80’s when [the] child would graduate from high school,”
and apparently intended to allow the father to assume custody “after he was
released from prison,” notwithstanding his conviction for sexual abuse of a minor.
The father takes issue with these findings.
The juvenile court’s finding that the aunt was not an appropriate placement
option was supported by the record. The father conceded as much.
The court’s finding as to the father’s sister was more problematic. The
father identified her as a potential placement months before the termination
hearing. The department social worker overseeing the case stated he performed
a background check, which “did not” disclose any concerns. He also checked the
abuse registry, which disclosed no concerns. He spoke to the sister and told her
he would be requesting a drug screen. He acknowledged that he failed to follow
up until a few days before the termination hearing. At that point, the sister told him
she could not come in for the drug test because of work obligations. The social 4
worker identified a time on the next day. The sister said she would have to check.
That was the extent of the department’s investigation into the sister before the first
day of the termination hearing.
The termination hearing did not end after the first day. It continued for
another two days over a seven-week period. On the third day, the department
employee testified the sister had yet to come in for a drug test. That testimony
supports the juvenile court’s finding that the child could not be placed with the
father’s sister.
We are left with the father’s grandmother. She testified that, although she
lived with the aunt who tested positive, she had plans to relocate in the immediate
future. In her words, “I’m intending to get my own place, so I can have more room
and everything.” She also stated that the department employee overseeing the
case did not contact her about having the child placed with her until sixty days
before the final day of the termination hearing. At the same time, she minimized
the culpability of her grandson in the crime that led to his conviction.
The department employee testified the grandmother was excluded as a
placement option because of her unwillingness to acknowledge her grandson’s
guilt. We are persuaded the department’s rationale was reasonable. The father
was precluded from having any contact with minors and, although the grandmother
testified she would abide by the no-contact order, her comments about her
grandson suggested otherwise.
On our de novo review of the record, we conclude the juvenile court
appropriately declined to place the child in a guardianship with one of the father’s
relatives. 5
II. Best Interests
Termination must be in the child’s best interests. See Iowa Code
§ 232.116(2). The father contends the child’s best interests were not served
because the connections with his family were “severed.” But the severance was
of his own making. The father committed a crime against a child. As noted, he
was ordered to have no contact with any children until he completed treatment,
which he had yet to begin. When asked whose fault it was that he did not have a
chance to raise his son, he responded, “Ultimately, it’s my fault that I have not
taken full consideration—or full responsibility.” On our de novo review, we
conclude termination was in the child’s best interests.
III. Reasonable Efforts
The department has an obligation to make reasonable efforts to reunify
parent and child. See In re C.B., 611 N.W.2d 489, 492–93 (Iowa 2000). At the
time of the termination hearing, the father informed the juvenile court that he
wished to challenge the department’s reasonable reunification efforts and,
specifically, its failure to pursue placement options with his relatives. The father
tangentially raised the question of the department’s statutory obligation to notify
relatives of the proceedings. We will begin with that obligation.
Iowa Code section 232.84(2) states:
Within thirty days after the entry of an order under this chapter transferring custody of a child to an agency for placement, the agency shall exercise due diligence in identifying and providing notice to the child’s grandparents, aunts, uncles, adult siblings, parents of the child’s siblings, and adult relatives suggested by the child’s parents, subject to exceptions due to the presence of family or domestic violence. 6
The “language places the onus on the department rather than the parents to
identify relatives subject to notification.” In re N.V., 877 N.W.2d 146, 151 (Iowa Ct.
App. 2016) (quoting In re R.B., 832 N.W.2d 375, 380 (Iowa 2013)).
The department failed to provide the required notice to the father’s relatives
until after the termination hearing began. Nonetheless, under the particular
circumstances of this case, reversal of the termination decision is not required.
See R.B., 832 N.W.2d at 382.
During the child-in-need-of-assistance proceeding, the father asked the
court to place the child with his aunt. The juvenile court ordered the department
to “meet with [the aunt] by the end of the week regarding possible placement” and
ordered the aunt to “provide a drug [test] upon DHS request.” The department
complied with the order, as did the aunt and, as noted, the drug test was positive
for cocaine. The aunt was ruled out as a placement option.
In the same order denying placement with the aunt, the juvenile court
advised the parents to identify services needed to facilitate reunification and
warned them that “failure to identify a deficiency in services may preclude the party
from challenging the sufficiency of services in a termination of parental rights
proceeding.” The order was filed five months before the termination hearing.
The father did not file a motion to have the department pursue other relative
placement options until the first day of the termination hearing. The State argued
his request came too late, an argument the juvenile court accepted.
The State’s argument, which it reprises on appeal, was well taken. We have
often stated requests for services must be made during the child-in-need-of-
assistance proceeding. See id. (“Custody of the children was transferred to the 7
department months before the termination hearing, yet no motion was filed until
days before the termination hearing.”). The pronouncement makes sense where
the parent is challenging the department’s failure to provide the required relative
notification because that notice contains a detailed description of the relatives’
options and obligations with respect to the child. See N.V., 877 N.W.2d at 151.
An early challenge also would afford the department an opportunity to correct the
oversight before the case proceeds to termination. See R.B., 832 N.W.2d at 382
(noting that if a motion to continue for failure to comply with the relative notification
requirement had been filed sooner, “the court still would have been in a position to
order notification of the [relative] without materially compromising the statutory time
period preceding termination”).
We recognize “the reasonable efforts obligation runs until the juvenile court
has entered a final written order of termination.” In re L.T., 924 N.W.2d 521, 528
(Iowa 2019). We also recognize “[t]he State must show reasonable efforts as a
part of its ultimate proof the child cannot be safely returned to the care of a parent.”
Id. at 527 (quoting C.B., 611 N.W.2d at 493). But where the goal is to establish
and maintain a relationship with family members that may endure through
termination and beyond, the sooner the challenge to the absence of notification
the better. Cf. N.V. 877 N.W.2d at 148 (citing relatives’ significant involvement
with the child before the department became involved and citing relatives’ motions
to intervene in the child-in-need-of-assistance proceedings and their reference to
the statutory notice requirements).
By the time of the termination hearing, the department’s reasonable-efforts
obligation was limited to “documentation of the steps taken to make and finalize 8
an adoption or other permanent placement.” L.T., 924 N.W.2d at 528–29. The
opportunity for the child to develop a relationship with his paternal relatives was
effectively foreclosed. And the ability of the department to fully investigate the
relatives for possible placement was limited. Under these circumstances, we
conclude the department did not violate its reasonable-efforts mandate by
proceeding with its plan to continue permanent placement of the child with the
family who cared for him from his infancy.
We affirm the termination of the father’s parental rights to the child.