In the Interest of S.J.

620 N.W.2d 522, 2000 Iowa App. LEXIS 101
CourtCourt of Appeals of Iowa
DecidedOctober 25, 2000
DocketNo. 00-83
StatusPublished
Cited by72 cases

This text of 620 N.W.2d 522 (In the Interest of S.J.) 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 S.J., 620 N.W.2d 522, 2000 Iowa App. LEXIS 101 (iowactapp 2000).

Opinion

VAITHESWARAN, J.

The juvenile court terminated Roy’s rights to parent Shiron. On appeal, Roy contends: (1) the Department of Human Services did not afford him reasonable reunification services and (2) the evidence was insufficient to establish Shiron could not be returned to his custody. We affirm.

I.Background Facts and Proceedings

Shiron was born to Roy and Crisea on April 2, 1996. Approximately four months after his birth, Roy was jailed on a drug charge and was ultimately convicted and imprisoned.

Crisea subsequently gave birth to another child. When cocaine was discovered in this child’s system, the State instituted child in need of assistance proceedings. Crisea did not cooperate with the Department of Human Services following commencement of these proceedings. At the end of the year, she went to Mississippi, leaving Shiron in her mother’s care at a home that was the site of illicit drug activity-

The State applied to remove Shiron from the home based on: (1) his mother’s noncooperation; (2) his mother’s absence from the State; (3) his younger half-sister’s birth with cocaine in her system; and (4) the drug activity in the home. The juvenile court granted the application and, in early 1999, Shiron was placed in foster care where he remained throughout the proceedings. Roy, who remained in prison, stipulated to an adjudication of Shiron as a child in need of assistance.

In August 1999, the State moved to terminate the parental rights of Roy and Crisea as to Shiron.1 Several weeks before the termination hearing, Roy was released to a half-way house. He attended and participated in the hearing. The juvenile court terminated his rights to parent Shiron.2 This appeal followed.

II. Standard of Review

We review termination cases de novo. In re J.L.W., 570 N.W.2d 778, 780 (Iowa App.1997). The State must show grounds for termination of a parent’s rights by clear and convincing evidence. In re E.K., 568 N.W.2d 829, 830 (Iowa App.1997).

III. Reasonable Services

Roy first maintains the department did not make reasonable efforts to reunite him with Shiron. The State responds: (1) Roy did not preserve error on this issue by timely requesting services and (2) Roy’s incarceration made him unavailable to receive services.

We disagree with the State on its error preservation claim. Roy completed and returned a social history worksheet sent by the department shortly after the child in need of assistance petition was filed. Although he did not expressly request reunification services, he asked what was going on with his son and requested that his son be placed in a clean, drug-free home. He also wrote, “[i]f my son well been [sic] is not proper I would like for him to place with my old [sic] daughter Selene ...” We conclude Roy’s correspondence with the department was essentially a request for services. Accordingly, we reject the State’s error preservation claim and proceed to the merits.

The State concedes it did not afford Roy reasonable reunification services as statutorily mandated. See Iowa Code section 232.99(3), 232.102(9) (1997). However, citing our holding in In re E.K., 568 N.W.2d 829, 831 (Iowa App.1997), the State maintains Roy’s incarceration rendered him unavailable to receive such ser[525]*525vices. We do not read In re E.K as broadly as the State does. Although we agree a parent’s imprisonment may create difficulties in providing reunification services, we are not convinced imprisonment absolves the department of its statutory mandate to provide reunification services under all circumstances. Instead, we conclude the department must assess the nature of its reasonable efforts obligation based on the circumstances of each case. See In re C.B., 611 N.W.2d 489, 493 (Iowa 2000) (noting State must show reasonable efforts as a part of its ultimate proof the child cannot be safely returned to care of parent); In re L.M.W., 518 N.W.2d 804, 807 n. 1 (Iowa App.1994) (noting reasonable efforts mandate requires agency to make reasonable efforts to prevent placement or to reunify families in each case) (emphasis in original); Iowa Code § 232.102(12) (1999) (court may waive reasonable efforts requirement under certain circumstances only with written findings of fact based on evidence in record).

The services required to be supplied an incarcerated parent, as with any other parent, are only those that are reasonable under the circumstances. In determining what services are reasonable under the circumstances, the department may wish to consider some or all of the following factors, among others, if applicable: the age of the children, the bonding the children have or do not have with their parent, including any existing clinical or other recommendations concerning visitation, the nature of parenting deficiencies, the physical location of the child and the parent, the limitations of the place of confinement, the services available in the prison setting, the nature of the offense, and the length of the parent’s sentence. The department has an obligation to make a record concerning its consideration of this issue.

The department here provided no reunification services until one month before the termination hearing, when it allowed Roy to have supervised visits with his son and made arrangements for Roy to attend child-development and parenting classes. We nevertheless conclude these services satisfied its statutory mandate. Before the department initiated services, Roy was imprisoned at a distant facility, rendering any provision of reunification services infeasible. When he was transferred closer to his son and sought services, the department immediately provided them. Roy complains, however, that the department did not give him a chance to demonstrate these services were working, but elected instead to proceed with its termination application. The department’s worker addressed this concern:

Q: What’s so important about [Shi-ron’s] need for permanency that we would forego giving the father another eight months to get out of the [half-way house] and establish a home for himself and the child and get involved in substance abuse treatment he may or may not need?
A: I would say based on the history of his incarcerations. [Shiron] has a need for consistency and to be worked with, someone to help him reach his potential, given his limited ability.
Q: How would you weigh the risk, or probability that [Roy] in another eight months might be able to be considered as a placement option for [Shiron], weighing that against the harm of [Shi-ron] in having to wait that long?
A: I would say based on his history, again it’s far more important for [Shi-ron] to have that stability and permanency.

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Bluebook (online)
620 N.W.2d 522, 2000 Iowa App. LEXIS 101, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-interest-of-sj-iowactapp-2000.