IN THE INTEREST OF A.H. and A.H., Minor Children, H.H. III, Father, Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-873 / 09-1351
Filed November 12, 2009
IN THE INTEREST OF A.H. and A.H.,
Minor Children,
H.H. III, Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Carol S. Egly, District
Associate Judge.
A father appeals a juvenile court permanency order of long-term foster
care for his children. AFFIRMED.
Jesse A. Macro, Jr. of Gaudineer, Comito & George, West Des Moines,
for appellant father.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney
General, John P. Sarcone, County Attorney, and Kevin Brownell, Assistant
County Attorney, for appellee State.
Kimberly Ayotte of the Youth Law Center, Des Moines, for minor children.
Considered by Vogel, P.J., and Doyle and Mansfield, JJ.
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MANSFIELD, J.
Henry, the father, appeals from a juvenile court permanency order of longterm foster care for his two children pursuant to Iowa Code section
232.104(2)(d)(4) (2009).
Before entering an order for another planned
permanent living arrangement, such as long-term foster care, the court is
required to find convincing evidence that termination is not in the child’s best
interests, services were offered to correct the problems that led to the child’s
removal, and the child cannot be returned home. Iowa Code § 232.104(3). On
appeal, Henry has only challenged the juvenile court’s finding that his children
could not be returned to his home. After considering the entire record, we affirm.
I. Background Facts and Proceedings
Henry is the father of a daughter (born October 1996) and a son (born
June 1998).
The Iowa Department of Human Services (DHS) first became
involved with Henry in April 2007, after a founded report of physical abuse on the
son perpetrated by the children’s stepmother. The case was successfully closed
in August 2007. In March 2008, the case was reopened following a second
founded report of physical abuse by the stepmother.
During both of these
incidents, Henry was spending significant amounts of time away from the home
due to his employment as an over-the-road truck driver. Following the reports,
the children struggled with mental health issues stemming from the physical
abuse as well as anxiety from their perception that Henry either did not care or
did not recognize that the abuse had occurred.
In early September 2008, the son had significant mental health concerns.
He had run away from the home twice and was found to be harming himself by
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rubbing the skin over his eyes until they bled. As a result, the State obtained a
removal order and filed a petition to find the children in need of assistance
(CINA).
On September 28, 2008, the children were adjudicated to be CINA
pursuant to Iowa Code sections 232.2(6)(a), (c)(2), (f), and (g) (2007).
On
October 24, 2008, the children were placed into the care of DHS for foster care
placement.
At this time, DHS began providing services to Henry and the children
including mental health evaluations, family team meetings, individual therapy
sessions, unsupervised visitations, and nightly phone calls.
In November 2008, Henry took steps so that he could be reunited with his
children.
He quit his job as an over-the-road truck driver and began driving
buses locally in Des Moines. Henry also found suitable housing and initiated
proceedings for a divorce from the abusive stepmother. Despite this progress,
concerns remained as to Henry’s ability to attend to his children’s mental and
emotional needs.
Henry’s inappropriate behavior toward the children’s initial foster care
family led the family to request the children’s removal in mid-December 2008. As
a result, DHS moved the children to a new foster home, and Henry was limited to
supervised visitations and supervised phone calls. Henry’s disagreement with
this decision led him to believe that DHS was working “against him” and giving
him nothing but “opposition.” Henry’s frustrations resulted in him not contacting
his DHS worker or his children for the next month.
In January 2009, DHS initiated individual therapy sessions for the children
to address their mental health concerns.
At these sessions, the children
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expressed that Henry did not listen to them or allow them to express their
feelings. The children further stated that when they tried, Henry would get upset,
which caused them to “shut down” and become quiet.
The children also
complained that Henry made them feel uncomfortable because he would whisper
to them to tell DHS that they wanted to return home with him.
Henry and the children were also provided family therapy sessions. At
these sessions, the children attempted to express their feelings to Henry, but he
often failed to appreciate what the children were trying to express. Rather, Henry
often blamed others, mainly DHS, for not listening to or understanding him.
In April, both children were prescribed medications for their mental health
issues.
The son was prescribed medication for attention deficit hyperactivity
disorder, while the daughter was prescribed medication for anxiety.
In early July 2009, a family team meeting was held in which it was agreed
to increase Henry’s responsibilities in regard to his children. First, it was agreed
that Henry would have semi-supervised visitations on Mondays. Mondays were
chosen because Henry informed DHS that it was his day-off, and he would not
work unless he chose to pick up extra shifts. However, Henry missed the first
two appointments and later claimed it was because he “had to be at work.”
Henry was given the responsibility of contacting providers to schedule individual
therapy sessions for the children as well as family team meetings. But, over the
next month, Henry failed to schedule any appointments. Finally, Henry was also
asked to enroll his children in school. Although Henry made an attempt, he was
unable to get his children enrolled, and failed to contact anyone to inform them of
the difficulties he was having.
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On August 26, 2009, a permanency hearing was held. At this time, the
evidence showed that Henry had a suitable housing arrangement for the
children. However, significant concerns were expressed by the DHS witnesses
as to whether Henry has gained any insight into his children’s mental health
needs and, more broadly, their trust.
Specifically, concerns remained as to
whether Henry gained any insight into how the stepmother’s physical abuse
affected his children, whether he has the ability to listen to his children and
respond appropriately, and whether the children could safely address their
mental health and emotional needs while in his care.
In light of their age, i.e., twelve and eleven years old respectively,
testimony was taken in camera from both children. Both wanted to continue or
even expand their visitation with their father; however, neither wanted to be
returned to Henry’s care. The son also testified he had been coached by Henry
“to tell the judge that I want to go home, which is not want I want to do.”
The juvenile court determined that termination was not in the children’s
best interests due to the children’s ages and their desire to continue to have a
relationship with their father. Nonetheless, the juvenile court found the children
could not be safely returned to Henry’s care.
Therefore, the juvenile court
ordered another planned permanent living arrangement in a family foster home.
Henry appeals.
II. Standard of Review
We review a permanency order de novo. In re N.M., 528 N.W.2d 94, 96
(Iowa 1995). Although we give weight to the juvenile court’s factual findings, we
are not bound by them. Id. Our paramount consideration is the best interests of
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the children. In re K.C., 660 N.W.2d 29, 32 (Iowa 2003). There is a rebuttable
presumption that the children’s best interests are served by parental custody. Id.
III. Analysis
Henry argues that the State failed to prove by convincing evidence that
the children could not be returned to his care. See Iowa Code § 232.104(3).
Our review of the record shows that although Henry is generally able to
provide for his children’s physical needs, significant concerns remain as to his
ability to care for the children’s mental health and emotional needs.
The children have already suffered multiple instances of physical abuse
while in Henry’s care. See In re Dameron, 306 N.W.2d 743, 745 (Iowa 1981)
(stating insight for what the future likely holds for children “can be gained from
evidence of the parent’s past performance, for that performance may be
indicative of the quality of the future care that parent is capable of providing”).
While it is true that Henry did not abuse the children himself, his failure to
recognize and help his children has led to a sense of distrust and anxiety in his
children about being returned to his care. Furthermore, Henry has failed to calm
this anxiety by listening to and acknowledging his children’s concerns while in
therapy.
Henry still lacks insight into how the prior physical abuse has affected his
children.
Both children are currently taking mental health medications and
attending weekly therapy sessions.
However, Henry does not believe the
medications or therapy would be necessary if the children were returned to his
care. Furthermore, when given the opportunity to schedule therapy sessions,
Henry failed to do so.
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Henry testified, “I feel really awkward . . . to say the word parent, yet I
don’t even feel like a parent because for so long I’ve been kept on the sidelines.”
He also complained about having “gotten nothing but opposition.”
However,
based on our review of the record, we believe it is inappropriate for Henry to
blame others entirely for his predicament—i.e., for not “feeling like a parent.”
And regardless of where any fault may lie, our overriding duty is to act in the best
interests of the children.
In that regard, we find particularly significant the
testimony of the DHS supervisor who seemed to have a good rapport with Henry,
who agreed that some of Henry’s frustration was appropriate, but who testified
that placement of the children with him would not be a good idea because of their
“tremendous anxiety about being in [Henry’s] care,” the children’s perception that
Henry shuts them down and doesn’t listen to them, and the concern that Henry
does not recognize the children’s mental health needs.
This is not a termination decision. Because of the bond the children have
with Henry and their reluctance to see their relationships with Henry permanently
severed, the permanency order under Iowa Code section 232.104(2)(d)(4) was
most appropriate and supported by convincing evidence. We affirm.
AFFIRMED.
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