IN THE INTEREST OF D.A., Minor Child, K.L., Grandfather, Appellant, M.A., Mother, Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 6-568 / 06-0897
Filed July 26, 2006
IN THE INTEREST OF D.A., Minor Child,
K.L., Grandfather,
Appellant,
M.A., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Wapello County, William S. Owens,
Associate Juvenile Judge.
A mother and maternal grandfather appeal the juvenile court’s order
terminating parental rights to a child. AFFIRMED.
Ryan Mitchell, Ottumwa, for appellant grandfather.
William Appel, Ottumwa, for appellant mother.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant
Attorney General, Mark Tremmel, County Attorney, and Jason Helm, Assistant
County Attorney, for appellee-State.
Shannon J. Woods and Gayla R. Harrison of Harrison, Moreland &
Webber, P.C., Ottumwa, guardian ad litem for minor child.
Considered by Sackett, C.J., and Hecht and Vaitheswaran, JJ.
2
PER CURIAM
The juvenile court terminated the parental rights of the parents of twelveyear-old Dakota. His mother, Melissa, and maternal grandfather, Kenneth, have
each filed a petition on appeal challenging the termination.
Kenneth also
contends that custody of the child should be placed with him. Dakota’s biological
father has not appealed. We affirm.
The mother contends (1) reasonable efforts were not made to reunify the
family, (2) terminating the parental rights is not in the child’s best interest, and (3)
venue of the case should have been moved to another jurisdiction when the
parties were no longer residing in Wapello County, Iowa.
The maternal grandfather contends (1) the juvenile court abused its
discretion in denying his motion for a continuance, (2) custody should have been
placed with him, (3) it was not in the child’s best interest to terminate the parents’
parental rights.
Our review in these cases is de novo. In re Dameron, 306 N.W.2d 743,
745 (Iowa 1981).
We give weight to the fact findings of the juvenile court,
especially concerning the credibility of witnesses. Id.
On December 29, 2004, the Department of Human Services was alerted
to a problem in Dakota’s home. A child protection worker arriving at the home
found that Dakota and his younger half-brother 1 were locked in separate upstairs
bedrooms. There were bolts on the outside of each door, and it appeared that a
bucket in each room was for the child’s use as a toilet. Dakota’s windows were
caulked shut. Melissa contended that Dakota, who functioned at about the first
1
The half-brother is in the custody of his biological father and is not involved in this
appeal.
3
grade level, needed to be in the locked room for his protection and the protection
of his half-brother. An order placing Dakota in the custody of the Department of
Human Services was entered in early January of 2005. Dakota has remained in
foster care ever since.
On May 22, 2006, the juvenile court terminated Melissa’s parental rights
under Iowa Code section 232.116(1)(f) (2005). 2 Neither appellant contends the
State failed to prove by clear and convincing the statutory grounds for
termination. On our review we find the grounds for terminating under this code
section were proved by clear and convincing evidence.
We first address Kenneth’s claim that a continuance should have been
granted. A new social worker had been appointed to the case several months
before the scheduled termination hearing and Kenneth felt the worker should
2
Section 232.116. Grounds for termination
1.
Except as provided in subsection 3, the court may order the
termination of both the parental rights with respect to a child and the
relationship between the parent and the child on any of the following
grounds:
...
(1)
The court has previously adjudicated the child to be a child
in need of assistance after finding the child to have been physically or
sexually abused or neglected as the result of the acts or omissions of one
or both parents, or the court has previously adjudicated a child who is a
member of the same family to be a child in need of assistance after such
a finding.
...
f.
The court finds that all of the following have
occurred:
(1)
The child is four years of age or older.
(2)
The child has been adjudicated a child in need of
assistance pursuant to section 232.96.
(3)
The child has been removed from the physical custody of
the child's parents for at least twelve of the last eighteen months, or for
the last twelve consecutive months and any trial period at home has been
less than thirty days.
(4)
There is clear and convincing evidence that at the present
time the child cannot be returned to the custody of the child's parents as
provided in section 232.102.
4
have additional time to give the case a fresh look. We review for an abuse of
discretion. In re C.W., 554 N.W.2d 279, 281 (Iowa Ct. App. 1996). The juvenile
court did not abuse its discretion in denying the motion for continuance.
We next address Melissa’s contention that the venue of the case should
have been moved because she no longer lived in Wapello County. The child’s
father, attorney and guardian ad litem, the child, and his foster parents continue
to live in Wapello County. We review for an abuse of discretion. In re E.H., III,
578 N.W.2d 243, 245-46 (Iowa 1998).
The juvenile court did not abuse its
discretion in refusing to move the matter from Wapello County.
We next address Melissa’s contention that reasonable efforts were not
made to reunify the family. This same challenge was made to this court in an
appeal from a permanency order continuing Dakota’s placement in foster care.
In that unpublished opinion, In re D.A., No. 05-1337 (Iowa Ct. App. Nov. 9, 2005),
we noted the State’s obligation to provide reasonable reunification services and
said:
We find the State made reasonable efforts both to prevent
the children’s removal and to reunify the family. To prevent
removal, the State provided family centered services, family
preservation services, and over 120 hours of supported community
living and respite care monthly. To promote reunification, the state
provided Melissa a psychological evaluation and recommended
individual therapy; it provided supervised visitation, both in the
home and elsewhere; it provided family centered services and
individual skill development; and provided mental health,
behavioral, and school performance assistance to Dakota.
Melissa does not contend she made further requests for services nor does
she reference what additional services should have been offered. Reasonable
efforts to prevent the removal and to reunify the family have been made.
5
Melissa’s last argument is that the termination is not in Dakota’s interest.
Termination of parental rights must be in best interest of the child; therefore,
termination is not mandatory, even if statutory requisites for it are met. In re
C.W., 554 N.W.2d 279, 282 (Iowa Ct. App. 1996). We recognize Dakota spent
considerable time in his mother’s care. Melissa testified that Dakota told her
during visits he wanted to come home. The State provided evidence from others
that Dakota did not want to go back with his mother. The guardian ad litem
argues, “Dakota is visibly afraid of the visits with his parents, and will verbalize
his desire for ‘no more visits,’ without prompts . . . .” The record indicates that
the child’s foster parents, with whom Dakota has established a good relationship,
are interested in adopting him and can provide a good home for him.
We have also considered the grandfather’s contention that Dakota should
have been placed with him. We recognize he did care for Dakota’s half-brother 3
and he is retired and apparently can obtain housing adequate for Dakota’s
needs. However, there is insufficient evidence to support a finding that he would
be an adequate custodian. We affirm the termination.
AFFIRMED.
3
It appears that when he cared for the half-brother his wife, who is a registered nurse,
also was living in the home, but apparently no longer is.
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