IN THE INTEREST OF K.H., Minor Child, R.J.H., Father, Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-252 / 07-0338
Filed April 25, 2007
IN THE INTEREST OF K.H.,
Minor Child,
R.J.H., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Daniel L.
Block, Associate Juvenile Judge.
A father appeals from a permanency order placing his daughter into a
guardianship with her grandparents. AFFIRMED.
Mark Milder, Waverly, for appellant father.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney
General, Thomas J. Ferguson, County Attorney, and Kathleen Hahn and Steve
Halbach, Assistant County Attorneys, for appellee State.
Christina Shriver, Hudson, for mother.
Linnea Nicol, Waterloo, guardian ad litem for minor child.
Considered by Mahan, P.J., and Eisenhauer and Baker, JJ.
2
BAKER, J.
A father appeals from a permanency order placing guardianship and
custody of his daughter with her paternal grandparents. He contends that the
juvenile court erred in determining the child could not be returned to the physical
care of her parents and in refusing to return her to the parents on a thirty-day trial
basis. We find the juvenile court’s actions should be upheld.
I. Background and Facts
R.H. is the father and M.Z. is the mother of K.H., born in February of 2000. 1
In September 2005, child in need of assistance (CINA) proceedings led to K.H’s
removal from her parents’ home because the family home was determined to
place her at risk due to the physical hazards and unsanitary safety conditions in
the home. Concerns were also reported in regard to R.H.’s history of sexual
fetishes and diagnosis of infantilism.
K.H. was placed in the home of her
paternal grandparents, where she has remained since her removal.
On February 1, 2007, a permanency hearing was held to determine whether
the grandparents should be named guardians and K.H. placed in their custody or
she should be returned to the care of her parents. The juvenile court found that
services had been provided by the Iowa Department of Human Services (DHS)
to correct the situation that lead to K.H.’s removal. Despite these services, the
family-centered service provider, who had met with the family on 113 separate
occasions, did not recommend K.H. be returned to her parents’ home due to on1
R.H. and M.Z. are also the parents of another daughter. Their parental rights to that
daughter were terminated in 2002 when they were unable to provide for her substantial
medical needs. R.H. is also the father of an older daughter who was adopted out at a
very young age.
3
going safety concerns and the parents’ unresolved behavioral and mental health
issues. 2
The service provider testified that guardianship with her paternal
grandparents was K.H.’s best option. K.H.’s guardian ad litem asked the juvenile
court to follow DHS’s recommendation that K.H. not be returned to the parents’
home. 3
The juvenile court found that the parents were residing with another couple
in a four-bedroom home, and that R.H. had expressed a sexual interest in the
female. The court found that R.H. had made some progress in meeting K.H.’s
emotional needs and addressing the issues that led to her removal. However,
the juvenile court also found M.Z.’s “bullying behaviors and lack of empathy or
support of the father and child continue to place the child at risk.”
The juvenile court also found that K.H. had a bond with her parents. She
was, however, thriving in the home of her paternal grandparents.
The court
found “a substantial probability does not exist that the child could be returned to
either parent’s care in the next three months,” 4 and it was in K.H.’s best interests
that guardianship and custody be transferred to her grandparents. The juvenile
court issued an order placing K.H. with her paternal grandparents pursuant to
Iowa Code section 232.104(2)(d)(1) (2005). The court ordered the parents be
2
At trial, the family-centered service provider testified to safety concerns including
leaving knives, box cutters, and medications within K.H.’s reach; a nest of mice living on
the front porch; and the parents’ failure to remove the hazards despite prompting from
the service provider. Behavioral concerns included poor co-parenting between M.Z. and
R.H., name calling, ignoring K.H.’s request for attention, and abrupt yelling. Mental
health issues included both parents engaging in infantile behaviors, such as wearing
diapers and using pacifiers for sexual gratification and emotional nurturing.
3
K.H.’s guardian ad litem filed a joinder with the State’s response to this appeal.
4
On September 18, 2006, the juvenile court deferred permanency for three months.
4
allowed reasonable visitation with K.H., but gave the grandparents authority,
consistent with K.H.’s best interests, to place any necessary restrictions upon the
contact. The father appeals.
II. Merits
We review permanency orders de novo. In re K.C., 660 N.W.2d 29, 32
(Iowa 2003). We give weight to the juvenile court’s findings of facts, especially
when considering the credibility of witnesses, but are not bound by them. In re
N.M., 528 N.W.2d 94, 96 (Iowa 1995); In re M.M., 483 N.W.2d 812, 814 (Iowa
1992). Our primary consideration is the best interests of the child. Iowa R. App.
P. 6.14(6)(o); In re C.D., 509 N.W.2d 509, 511-12 (Iowa Ct. App. 1993).
R.H. contends that the juvenile court erred in determining that K.H. could
not be returned to the physical care of her parents because the parents had
complied with the court’s and DHS’s expectations and demonstrated an ability to
protect and nurture the child. Upon our careful de novo review of the record, we
conclude, as did the juvenile court, that the facts justify placing K.H. with her
grandparents. We agree that “clear and convincing evidence has been shown
that long-term placement in the home of [the paternal grandparents] is in the
child’s best interests.”
Using R.H. and M.Z.’s past performance as a predictor of future
performance, there is convincing evidence that they are unable to provide a safe
and nurturing environment for their daughter. See In re T.T., 541 N.W.2d 552,
556 (Iowa Ct. App. 1995) (“A parent's past performance may be indicative of the
quality of future care the parent is capable of providing.”).
There are safety
concerns due to the presence of hazards in the home. Additionally, R.H. has
5
posted pictures of himself on the internet wearing only a bib or only diapers.
M.Z. continues to associate with persons on the internet who engage in
pedophilic behaviors and does not realize how this puts K.H. at risk. The record
supports the juvenile court’s conclusion that, although some progress has been
made, the parents’ behaviors continue to place K.H. at risk. We agree with the
juvenile court’s determination that K.H. could not be returned to the physical care
of her parents.
R.H. further contends that the juvenile court erred in refusing to return K.H.
to her parents on a thirty-day trial basis. The State contends that R.H. waived
any error by initially making the request at the permanency hearing. 5 R.H. does
not contend he raised the issue prior to the permanency hearing but states the
issue was preserved because “[t]he father and mother of the child at interest
contested the State’s recommendation for a guardianship and affirmatively
requested that the Court return custody of the minor child on a trial basis at the
final permanency hearing.”
A parent is required to object to the services provided or request additional
services as early as possible so timely and appropriate changes can be made.
In re C.B., 611 N.W.2d 489, 493-94 (Iowa 2000). Failure to do so may result in
waiver of appellate review on this issue. In re S.R., 600 N.W.2d 63, 65 (Iowa Ct.
App. 1999). Because R.H. failed to raise the issue before the final guardianship
hearing, we conclude he has not preserved the claim for our review on appeal.
5
Although the State’s brief to this court states the mother has appealed the permanency
order and refers to M.Z. throughout, the petition on appeal was filed by the father, and
we have assumed the State is responding to R.H.’s brief and arguments.
6
Assuming R.H.’s claim had been preserved, we find the juvenile court did
not err in refusing to return K.H. to her parents on a thirty-day trial basis. For the
foregoing reasons, we have found the parents have not demonstrated an ability
to protect and nurture the child. Additionally, R.H. presented no proof that an
additional trial basis would result in anything other than a delay in permanency.
See In re A.C., 415 N.W.2d 609, 613 (Iowa 1987) (“patience with parents can
soon translate into intolerable hardship for their children”).
We therefore affirm the juvenile court’s order placing guardianship and
custody of K.H. with her paternal grandparents.
AFFIRMED.
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