IN THE INTEREST OF A.G. and A.G., Minor Children, L.M.R., Father, Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-878 / 07-1711
Filed November 15, 2007
IN THE INTEREST OF A.G. and A.G.,
Minor Children,
L.M.R., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Joe E. Smith, District
Associate Judge.
A father appeals from the order terminating his parental rights.
AFFIRMED.
Scott Bandstra, Des Moines, for appellant father.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant
Attorney General, John P. Sarcone, County Attorney, and Michelle Chenoweth,
Assistant County Attorney, for appellee State.
Steve Clarke, Des Moines, for minor children.
Samantha Kain, Ankeny, for mother.
Considered by Vogel, P.J., and Mahan and Zimmer, JJ.
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MAHAN, J.
A father appeals from the order terminating his parental rights under Iowa
Code sections 232.116(d) and (f) (2007). He claims his parental rights were not
properly terminated because it was not his actions that led to A.G.’s adjudication
as a child in need of assistance and there was no clear and convincing evidence
the child could not be returned to the father’s custody at this time. We affirm.
I. Background Facts and Proceedings
The father has one son, A.G., who is the subject of this termination action.
A.G.’s half-brother was also the subject of these termination proceedings, but is
not the subject of this appeal. A.G. is five years old. A.G. and his half-brother
were removed from their mother’s care on August 24, 2006, and adjudicated
children in need of assistance (CINA) pursuant to Iowa Code sections
232.2(6)(b), (c)(2), and (h) on November 2, 2006. Their removal was prompted
by neglect due to the mother’s drug use. A.G. and his half-brother currently
reside in the home of a relative.
Although the father’s attorney was present at all of the hearings, he took
no position with regard to the CINA adjudication on November 2, 2006, and the
review hearing on July 3, 2007. The father did not personally attend a court
proceeding until the April 10, 2007 review hearing. His paternity of A.G. was
established through testing on May 3, 2007. Families First was hired to provide
supervised visitation between the father and A.G. The first scheduled visit was
cancelled by the provider. The father failed to call one hour prior to the second
scheduled visit to confirm the meeting and did not answer his phone. Although
he called twenty minutes later, the visit did not happen as scheduled. Because
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the father obtained a new phone, there was a lapse of any contact between him
and the provider between May 13, 2007, and June 1, 2007. A third visit was
scheduled for June 7, 2007, but the father again failed to call and confirm the
meeting. The visit did not happen.
The father re-contacted the provider in August regarding visits with A.G.
Two one-and-one-half-hour supervised visits were then provided. The provider
noted in a report dated August 28, 2007, that A.G. was quiet and withdrawn from
his father. He did not return a hug to his father during the initial visit, nor did he
respond to encouragement from the provider to interact with his father. He did,
however, energetically show his father a nickel he had received at school that
day. On the second visit, the father and A.G. played a computer game together
for the majority of the visit. A.G. was more comfortable with his father during this
visit, allowing his father to show him how to work the computer. However, it was
clear that A.G. was not bonded with his father. These two visits in August 2007
were the only contact between A.G. and his father since the child was removed
from his mother’s home in August 2006. The record lacks information on the
extent of the father’s involvement in A.G.’s life before the date of removal.
The father lives in a three-bedroom house with his girlfriend and his
brother. At the termination hearing on August 28, 2007, the father testified that
he works forty-five to fifty hours per week drywalling. He stated that he has
adequate housing and income to support A.G. on a full-time basis. He stated
that his mother would help him care for A.G. He did not pay anything toward the
support of A.G. since A.G. has been living in the home of the relative. There is
no court order requiring him to pay child support.
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The father admitted to not being involved in the case in its early stages but
stated that he would now like custody of A.G. Specifically, he testified as follows:
Q. You would agree that your past involvement hasn’t been
quite what it should have been, correct? A. I believe if I had been
involved from the beginning I would not be here right now with you
people, I would be with my son at my house.
Q. And why should the judge and everybody else in this room
believe that you are committed to doing what you need to do now to
take care of your son when you haven’t done it up to this point?
A. Maybe because of fear of coming to court. I thought I shouldn’t
be afraid. I’m not a criminal, and I haven’t done anything.
Q. Is that why, you were afraid to come to court? A. I believe
yes.
Q. Did you have any other problems or any other difficulties
that kept you from coming to court or getting involved in this case?
A. No.
The record shows that the father pled guilty to a charge of possession of a
controlled substance on January 24, 2003, and was given a deferred judgment.
As a result, he was deported. 1 The father was also arrested on July 8, 2004, for
possession of a controlled substance. He used an alias and pled guilty to this
charge on September 16, 2004.
The district court terminated both the father’s and the mother’s parental
rights pursuant to Iowa Code sections 232.116(d) and (f) on September 13,
2007. In regards to the father’s efforts, the district court stated:
[The father’s] efforts, while commendable are too little too late. It is
unfortunate that [he] was afraid to come to court, but that is what
was required of him. Arriving as he has at the eleventh hour does
not mean I should delay while he decides whether or not he wants
to serve as a parent.
....
I recognize that [the father] has come forward, but it would
be months before I could establish to my satisfaction whether or not
he would be in a position to parent [A.G.]. . . . If [the father] were to
1
The record is devoid of any indication as to the results of the deportation, but it is clear
the father is back in Iowa.
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demonstrate that he could be a safe parent for [A.G.] and could
attain his custody I would be required to separate these siblings.
That is a move that I would make with greatest reluctance. For all
these reasons, the inescapable conclusion is that these young
boys’ best interests will be best served by termination of parental
rights to all parents.
The father now appeals.
II. Standard of Review
We review the termination of parental rights de novo. In re D.G., 704
N.W.2d 454, 457 (Iowa Ct. App. 2005). The State must prove the circumstances
for termination by clear and convincing evidence. In re L.E.H., 696 N.W.2d 617,
618 (Iowa Ct. App. 2005). Our primary concern is the best interests of the child.
Id.
In determining the child’s best interests, we look to both long-term and
immediate needs. Id.
III. Merits
The father’s parental rights to A.G. were terminated under Iowa Code
sections 232.116(d) and (f). When the district court terminates parental rights on
more than one statutory ground, we are only required to find termination proper
under one ground to affirm. In re S.R., 600 N.W.2d 63, 64 (Iowa Ct. App. 1999).
Because we find termination proper under section 232.116(f), we do not address
the merits of termination under section 232.116(d).
Termination of parental rights is proper under section 232.116(f) if: (1) the
child is fours years of age or older; (2) the child has been adjudicated a child in
need of assistance; (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
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days; and (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. The father disputes only the presence of the fourth element.
The father claims that A.G. can be returned to his custody at this time. He
points out that the neglect that caused A.G. to first be removed and adjudicated a
CINA did not involve him, but instead A.G.’s mother. He states that he is ready,
willing, and able to have custody of his son. However, the record is clear that
before their August 2007 supervised visits, the father had not seen his son for at
least one year. It was apparent that A.G. had no bond with the father. In order to
return A.G. to the father’s home, much more time would be needed. The child
would need to feel comfortable with his father and his father’s home. This would
have to be achieved gradually through supervised, unsupervised, and eventually
overnight visits. A.G. could not have been sent home to his father’s house on the
date of the termination hearing to live with a man he feels little connection to and
to stay in a home that is strange to him. The father failed to sufficiently take
advantage of the visitation offered him until the last month before this termination
hearing.
It cannot reasonably be anticipated that he would adequately take
advantage of additional parenting services in order to regain custody of his child.
We find clear and convincing evidence that A.G. cannot be returned to his father
at this time.
We turn now to the best interests of A.G. First, we note, that the father did
not take issue with the district court’s determination of A.G.’s best interests.
Regardless, we agree with the district court that termination of the father’s
parental rights is in A.G.’s best interests. Parenting is a full-time job that “cannot
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be turned on and off like a spigot. It must be constant, responsible, and reliable.”
In re L.L., 459 N.W.2d 489, 495 (Iowa 1990). The father had no contact with
A.G. in the past year until his two brief visits the month of the termination hearing.
He has made no financial contributions to the child’s support. Although he has
made attempts since last April to visit A.G., the father has been completely
unreliable and difficult to reach up until the last month before the termination
hearing. His sudden interest in visiting his son is not enough. See In re C.B.,
611 N.W.2d 489, 495 (Iowa 2000) (holding that a parent’s sudden interest in
parenting in the two or three months before the termination hearing is insufficient
to reunify the parent and child). The father’s past performance as a parent is a
significant indicator of his future performance. In re J.E., 723 N.W.2d 793, 798
(Iowa 2006). There is no reasonable basis to believe that the father will be able
to provide the child with the stability and sense of safety he needs in the near
future. Children grow up too fast to be forced to wait indefinitely for responsible
parents. L.L., 459 N.W.2d at 495.
AFFIRMED.
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