In the Interest of O.P., O.P., R.P., and L.P., Minor Children

• Court: Court of Appeals of Iowa
• Decided: June 3, 2020
• Docket: 19-1733
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 19-1733 Filed June 3, 2020

IN THE INTEREST OF O.P., O.P., R.P., and L.P., Minor Children,

J.P., Father, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Warren County, Brendan Greiner,

District Associate Judge.

A father appeals the termination of his parental rights to four children.

AFFIRMED.

Jeremy M. Evans of Carr Law Firm, P.L.C., Des Moines, for appellant father.

Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant

Attorney General, for appellee State.

M. Kathryn Miller of Juvenile Public Defender, Des Moines, attorney and

guardian ad litem for minor children.

Tara M. Elcock of Elcock Law Firm, PLC, Indianola, for mother.

Considered by Mullins, P.J., May, J., and Blane, S.J.* 2

BLANE, Senior Judge.

J.P., the father of four children (Or.P, Op.P, R.P., and L.P.1) appeals the

termination of his parental rights. The juvenile court found the State proved the

statutory grounds for termination under Iowa Code section 232.116(1)(f) and (h)

(2019). J.P.’s only preserved contention is that the department of human services

(DHS) failed to make reasonable efforts toward reunification because it failed to

give J.P. phone calls with the children while he was incarcerated. Finding DHS

made reasonable efforts, we affirm.

We review termination orders de novo. In re M.W., 876 N.W.2d 212, 219

(Iowa 2016). We are not bound by the juvenile court’s fact findings but we give

them weight, particularly regarding witness credibility. Id.

Iowa Code section 232.102(7) requires the DHS to “make every reasonable

effort to return the child to the child’s home as quickly as possible consistent with

the best interests of the child.” See In re C.B., 611 N.W.2d 489, 493 (Iowa 2000).

“The 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. The reasonable-efforts

requirement is not “a strict substantive requirement of termination.” Id. But when

relying on paragraphs (f) and (h) as the grounds for termination, as it did here, the

State must show the DHS made reasonable efforts toward reunification as part of

its ultimate burden of proof. See In re L.T., 924 N.W.2d 521, 527 (Iowa 2019).

First, although J.P. asks in appellate briefing for additional time to work

toward reunification, the State argues the issue was not preserved for appellate

1At the time of the hearing, the children were ages four, three, two, and one year old. 3

review. J.P. does not state where in the record he preserved this issue. On our

review, we determine he did not make an extension request during the termination

hearing, and the juvenile court did not address the issue. Therefore, we conclude

J.P. did not preserve error. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa

2002) (“It is a fundamental doctrine of appellate review that issues must ordinarily

be both raised and decided by the district court before we will decide them on

appeal.”).

Second, the State contends J.P. failed to preserve error on his reasonable-

efforts claim because he failed to raise it before the termination hearing. See In re

S.R., 600 N.W.2d 63, 65 (Iowa Ct. App. 1999) (finding, to preserve error, the parent

must “demand other, different or additional services prior to the termination

hearing”). In fact, the court continued the original date of the termination hearing,

with the agreement of all parties, because it learned J.P. had requested and not

yet received phone calls with the children while in the prison where he was

incarcerated. We will assume without deciding that this course of action was

sufficient to notify the court of J.P.’s request for additional phone visitation prior to

the termination hearing. See In re C.H., 652 N.W.2d 144, 148 (Iowa 2002)

(“[V]oicing complaints regarding the adequacy of services to a social worker is not

sufficient. A parent must inform the juvenile court of such challenge[s].”).

Nonetheless, J.P.’s subsequent conduct rendered it nearly impossible for DHS to

grant his request and leads us to conclude DHS’s efforts were reasonable.

The original termination hearing was scheduled for June 3, 2019. J.P. was

then in prison and had been in prison since August 2018. The June 3 hearing was

continued to September, and the social worker attempted to set up phone calls 4

between J.P. and the children through his counselor at the Newton Correctional

Facility. The worker did not hear back from the counselor, and J.P. was released

from the prison in early July. His parole was conditioned on placement to the

Salvation Army. The social worker immediately attempted to contact J.P. to set up

visitation, but after only a couple days of release, J.P. had absconded from the

Salvation Army. The social worker tried an alternate phone number J.P. had

provided but found it was an incorrect number.

In late July, J.P. was apprehended and returned to the Newton facility. The

social worker again attempted to contact J.P.’s prison counselor, but the

department of corrections transferred J.P. to the Mount Pleasant facility. Within a

couple weeks of the termination hearing, the social worker had made contact with

J.P.’s new counselor but had not yet established phone calls.

“[W]hat constitutes reasonable services varies based upon the

requirements of each individual case.” Id. at 147. In this case, we find DHS made

reasonable efforts. DHS’s efforts were hindered by J.P.’s late request for contact

with his four young children. Although he was released from prison within a matter

of weeks, he chose to abscond from the release program and ended up on the run

and beyond contact with DHS and his children. After he was apprehended and

returned to prison, the department of corrections moved him to a different facility

where the DHS had to establish contact with a new counselor and had not been

able to set up phone calls before the continued termination hearing. The social

worker acted reasonably in attempting to contact J.P. in two different prisons, at

his request. He had an opportunity to re-establish face-to-face contact but foiled

that by absconding. DHS’s efforts were reasonable in attempting to provide this 5

requested service. Therefore, we affirm the order terminating J.P.’s parental

rights.