IN THE COURT OF APPEALS OF IOWA
No. 14-0847
Filed September 17, 2014
IN THE INTEREST OF J.H.,
Minor Child,
J.H., Father,
Appellant.
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Appeal from the Iowa District Court for Dallas County, Virginia Cobb,
District Associate Judge.
A father appeals the termination of his parental rights to his son, born in
2008. AFFIRMED.
Jesse A. Macro of Gaudineer & George, L.L.P., West Des Moines, for
appellant father.
Thomas J. Miller, Attorney General, Janet L. Hoffman, Assistant Attorney
General, Wayne Reisetter, County Attorney, and Sean Weiser, Assistant County
Attorney, for appellee State.
Kayla Stratton of the Des Moines Juvenile Public Defender, Des Moines,
attorney and guardian ad litem for minor child.
Considered by Vaitheswaran, P.J., and Doyle and McDonald, JJ.
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VAITHESWARAN, P.J.
A father appeals the termination of his parental rights to his son, born in
2008. He contends the Department of Human Services failed to make
reasonable efforts towards reunification.
I. Background Facts and Proceedings
The child was removed from the parents’ custody in 2010, based on
substance abuse and domestic violence. He remained out of the father’s care for
over three years. During that period, the father spent a significant portion of time
in jail or prison. He was most recently released just two months before the
termination hearing.
Following the hearing, the district court terminated the father’s parental
rights pursuant to Iowa Code sections 232.116(e) (requiring proof of several
elements including proof that parent failed to maintain significant and meaningful
contact with the child); and (f) (requiring proof of several elements including proof
that child could not be returned to parent’s custody). Iowa Code §§ 232.116(e),
(f) (2013). The father appealed.
II. Reasonable Efforts
The department has an obligation 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.” Iowa Code § 232.102(7). The concept includes “visitation
designed to facilitate reunification while providing adequate protection for the
child.” In re C.B., 611 N.W.2d 489, 493 (Iowa 2000).
The district court addressed the department’s reasonable efforts obligation
as follows:
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[The father] claims that reasonable efforts have not been made to
reunify him with his son. He claims that he has not been permitted
to have family interactions with [the child] for a significant period of
time, and that he has written letters which have not been delivered
to his son. [The father], however, also acknowledged in writing to
the court that he has not done what has been asked of him,
although he claims he could not afford treatment, or tried and was
turned away. He was offered individual therapy, substance abuse
treatment, mental health treatment and anger management
treatment. The court finds that reasonable efforts to reunify were
provided.
On our de novo review, we are less sanguine about the department’s
reunification efforts.
The department social worker overseeing the case admitted she did
nothing to facilitate reunification while the father was incarcerated. Her only
reason for declining to afford services during these periods was that the agency
was not requested to do so.
The department’s reasonable efforts obligation is not triggered by a
request. Although a parent is required to seek new and different services if the
original services are deemed inadequate, the department’s duty to work towards
reunification of parent and child begins at the moment of removal and continues
through termination, unless statutorily waived. In re C.B., 611 N.W.2d at 492-93
(stating concept “covers both the efforts to prevent and eliminate the need for
removal” and stating several termination provisions contain “a common element
which implicates the reasonable effort requirement”). While incarceration may
render the provision of services more difficult, it does not absolve the department
of the obligation to make reasonable reunification efforts. See In re S.J., 620
N.W.2d 522, 525 (Iowa Ct. App. 2000). Notably, the obligation was a substantive
requirement of both statutory grounds on which the district court relied in
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terminating the father’s parental rights. See Iowa Code §§ 232.116(1)(e), (f).
For these reasons, the department could and should have tried to address the
concerns that led to the removal of the child, even when the father was behind
bars.
While the department shirked its responsibilities to the father during his
periods of incarceration, we nonetheless conclude the agency minimally satisfied
its statutory mandate by paying for a psychosocial evaluation and by facilitating
the father’s participation in a drug treatment program.
That said, we are troubled by the refusal of the child’s therapist to
recommend any contact between the father and child, including supervised visits
or correspondence, which the father agreed to send to the department for pre-
screening. Her rationale essentially boiled down to “once a bad parent always a
bad parent,” a view that is inconsistent with the department’s statutory
reunification obligation. The department was remiss in unquestionably accepting
her opinion. But, in the end, the department’s decision to deny contact was
based on the father’s established past conduct, which revealed he was not a safe
person to be around the child. The department summarized the safety concerns
as follows:
[The father’s] involvement has been very sporadic with [the child].
He has disengaged from [the child’s] life on several occasions since
DHS became involved in 2010. The[r]e are times when [father]
admits to using chemical[s] again, not taking his medication, and
not being able to work or find a place to live on a consistent basis.
[The father] reports he is now homeless following a protective order
forcing him out of his mother’s home. . . .
[The father] has a history of violence. He has a pending domestic
violence charge where he is alleged to have assaulted a cousin that
was living in his Mom’s home with him. [The child] is not safe to be
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around his father at this time. [The father] can lapse into anger
easily.
These concerns required a limitation of contact between father and child. See
S.J., 620 N.W.2d at 526 (holding "While a once unfit parent may not
automatically be deemed unfit, a parent may not wipe the slate clean merely by
professing a desire to do so. We have considered a parent's arrests and
incarcerations in determining whether return of a child to a parent would result in
harm.").
Significantly, the father only began to correspond with the child shortly
before the termination hearing. By this time, three years had elapsed since the
child’s removal, and the State had filed its petition to terminate parental rights.
Under these circumstances, we conclude the department’s decision to rely on the
therapist’s no-contact recommendation is not a violation of its reasonable efforts
mandate.
We affirm the termination of the father’s parental rights to his child.
AFFIRMED.
In the Interest of J.H., Minor Child, J.H., Father
Combined Opinion