IN THE INTEREST OF D.G., III, Minor Child, D.G., Jr., Father, Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-883 / 09-1400
Filed November 12, 2009
IN THE INTEREST OF D.G., III,
Minor Child,
D.G., Jr., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Joe E. Smith, District
Associate Judge.
A father appeals the termination of his parental rights to his son.
AFFIRMED.
Alexandra M. Nelissen of Nelissen & Juckette, P.C., Des Moines, for
appellant father.
Marc Elcock, Des Moines, for mother.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant
Attorney General, John P. Sarcone, County Attorney, and Michelle Chenoweth,
Assistant County Attorney, for appellee State.
Jessica Bromley of Carter Law Offices, Des Moines, guardian ad litem for
minor child.
Nancy Pietz, Des Moines, for child’s guardian.
Considered by Eisenhauer, P.J., Potterfield and Doyle, JJ.
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POTTERFIELD, J.
D.G. Jr. (Jr.) appeals the termination of his parental rights to his son, D.G.
III (D.G.), contending the statutory requirements for termination have not been
met. We affirm.
I. Background Facts and Proceedings.
D.G. was born in May 2004 and began living with his paternal aunt, Alycia,
and her children, in 2006,1 shortly after Jr. learned he was the child’s father.
D.G.’s mother voluntarily allowed Alycia to take D.G. into her care. An order of
the probate court named Alycia as legal guardian in January 2007.
D.G. came to Alycia with developmental delays with respect to his speech
and play.
In December 2007, Alycia began taking him to child therapist,
Rebecca Robinett.
D.G. continued to see Ms. Robinett throughout these
proceedings.
D.G. was adjudicated a child in need of assistance (CINA) in September
2008.2
Although the record does not contain much information about Jr.’s
involvement with D.G. during the first four years of his life, it appears that he had
been content to leave the child’s care with his sister, Alycia.
Jr. reportedly
provided no financial support for the child, although there is one reference noting
he was regularly employed.
Jr. sought no services in relation to the CINA
proceedings until April 2009, when he attended a family team meeting.
1
The record is not entirely clear when D.G. first started living with Alycia. However,
Alycia informed social worker Rebecca Robinett that Jr. learned he was D.G.’s father
when D.G. was about eighteen months old and it was then that Alycia approached
D.G.’s mother about meeting D.G. Alycia stated that the mother allowed D.G. to go with
her and stay overnight even though the mother did not know Alycia.
2
The adjudication resulted from D.G.’s sibling having been sexually abused by a man in
the mother’s house and concerns for D.G.’s unsupervised visits with the mother.
3
An April 30, 2009 report to the court of the guardian ad litem (GAL) states:
[D.G.] sees his father [Jr.] frequently but not consistently. Jr.
resides across the street from [Jr.] and Alycia’s mother. Alycia
frequently visits her mother and during those visits [D.G.] sees his
father. While the undersigned does not believe that [Jr.] is a threat
to [D.G.], the undersigned believes that [Jr.] has consistently failed
to step up to the plate, so to speak, when it comes to parenting
[D.G.]. [Jr.] is content in allowing Alycia to handle all of [D.G.]’s
needs. While the undersigned is sure that Alycia would like a break
from time to time, [Jr.] does not offer to provide these much needed
breaks for Alycia. Yet—[Jr.] has insisted that he does not want his
parental rights terminated and that he someday hopes to regain
custody of [D.G.] The actions of [Jr.] are contrary to his statements.
Meanwhile, Alycia provides for all of [D.G.]’s needs without
complaint and treats [D.G.] no differently than her own biological
children. . . .
....
Based on the above-mentioned reasons the undersigned
agrees with the recommendations set forth in the Case
Permanency Plan. The undersigned further believes that [D.G.]
should remain in the custody, care and control of his guardian. . . .
The undersigned believes that any visitation between [D.G.] and
[Jr.] should be at the discretion of [Alycia] and that [Jr.] must begin
participating in therapy sessions and parenting classes.
In a June 30, 2009 report, the GAL noted D.G. was having “increased
visits with his father,” but they “continue to be inconsistent.” The GAL expressed
concern about the effect of the inconsistency on D.G. She also noted that Jr.
had “begun participating in [D.G.]’s therapy sessions with Becca Robinette” and
noted that Alycia hoped that the sessions would have a positive impact on D.G.
The June 30, 2009 review order continued D.G.’s placement with Alycia
“subject to [Department of Human Services] DHS supervision and further review
by the Court.” A permanency hearing was set for August 10, 2009.
On August 10, 2009, the State filed a petition to terminate parental rights.
The permanency hearing was continued and was to be held with the termination
hearing on August 27, 2009. At the termination hearing, the parties agreed to
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proceed based upon the admitted exhibits, written record, and stipulation that
Ms. Robinett supported termination of parental rights of both parents, that she
had considered the issue of a long-term guardianship with Alycia rather than
termination, and that she did not believe the guardianship would be in D.G.’s best
interests. Jr. did not testify and the exhibits contain little information about him,
his residence, health, history, work schedule, education, or plans for the future.
The single most telling piece of information about Jr. and his care of D.G. is the
description of the changes in D.G.’s behavior following a short period of time
during which Jr. provided unsupervised care for the child.
Exhibits on file include a report to the court by Andrea Jones, DHS social
worker. Ms. Jones stated that on a July 23, 2009 visit with D.G. and his siblings,
she learned that D.G. was living with his father and that the “situation was done
without any input from DHS or [D.G.]’s GAL.” She reported that she observed
“extreme behaviors at the visit” and learned from another service provider that
D.G.’s behavior “went downhill” after the June 30 review hearing. Ms. Jones
reported that D.G. “struggles when his routine or structure changes without
warning; this was evident by the changes in his behavior when he was living with
his father.” Ms. Jones expressed concern that Jr. lacked insight into the needs of
his son and “seems to act on what is best for [Jr.] instead of what is best for his
son.”
Two writings by Ms. Robinett are in evidence. Ms. Robinett’s June 22,
2009 report to the court was quite favorable toward Jr., in which she states:
[D.G.] demonstrates that he feels safe to express a full range of
emotions in both Alycia’s and his father’s presence. [Jr.] has
created a number of age appropriate rules and expectations for
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[D.G.] to follow when they spend time together and we have been
able to process how they are negotiating these rules during their
time together.
In a July 28, 2009 letter to DHS, Ms. Robinett noted that in early July D.G.
began “spending the majority of his time with his father including overnights,” a
situation Ms. Robinett “assumed . . . was a court approved change.” She noted
that D.G.’s behavior and mood changed in her July sessions with him. She
described D.G. as “irritable,” “aloof,” and “defiant.” Ms. Robinett had spoken with
Alycia, who shared concerns expressed by D.G.’s teacher as to recent changes
in D.G.’s behavior. Ms. Robinett noted that she learned on July 24 that the
change in D.G.’s care had not been approved by the court and was done without
DHS involvement or awareness.
Alycia’s
custody.
In
this
She indicated that D.G. was returned to
letter,
Ms.
Robinett
made
the
following
recommendations:
I believe it remains in [D.G.]’s best interest to remain in
[Alycia’s] custody, with frequent, predictable contact with his father.
I recommend that [D.G.] and his father have three routine weekly
visits as suggested by DHS. Their visits should increase in
duration and frequency gradually, as long as [D.G.]’s behavior
remains consistent. A change in behavior could indicate that he is
struggling too much with the adjustment and because of his young
age, he lacks the ability to articulate his needs.
It is difficult to make a recommendation regarding
permanency for [D.G.] as it relates to his father. [Jr.] intends and
has shown the ability to provide care for [D.G.] as he has
demonstrated over the past few weeks. However, based on a
lengthy history of his inconsistent involvement with [D.G.]’s routine
care prior to the past few months, it is difficult to predict if he is
prepared to manage this responsibility long term, as this change
occurred only after consideration of impending termination of rights.
As noted above, the parties stipulated that, at the time of the August 27
hearing, Ms. Robinett recommended termination.
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The court ordered Jr.’s parental rights be terminated pursuant to Iowa
Code subsections 232.116(1)(d) (child adjudicated CINA, parents offered
services, and circumstance continues despite services) and (f) (child over four
years of age, adjudicated CINA, out of parent’s custody twelve of last eighteen
months, and cannot be returned to parent’s custody) (2009).
With respect to Jr., the court found:
Jr. recently ramped up his efforts to demonstrate that he could be a
viable option for [D.G.]. The classic phrase too little, too late comes
to mind.
[Jr.] would need a significant amount of time to
demonstrate that he is in his son’s life for the long haul. The recent
disruption in his placement resulted in the degradation of D.G.’s
behavior. That this seismic shift for [D.G.] was undertaken without
the knowledge and blessing of the professionals in the case
demonstrates, on [Jr.’s] part, a real lack of sensitivity to his son’s
well being.
The court also concluded that even though it need not terminate parental
rights when a child is in a relative placement, D.G. was in need of permanency.
He had lived with Alycia more than half of his life and she had “done an
exemplary job of addressing [D.G.]’s special needs.” Because neither of his
parents was “in a position to provide him with a safe, stable, and permanent
home,” the court found it in his best interests to terminate parental rights.
Jr. now appeals.
II. Scope and Standard of Review.
We review termination proceedings de novo. Although we are not
bound by them, we give weight to the trial court’s findings of fact,
especially when considering credibility of witnesses. The primary
interest in termination proceedings is the best interests of the child.
To support the termination of parental rights, the State must
establish the grounds for termination under Iowa Code section
232.116 by clear and convincing evidence.
In re C.B., 611 N.W.2d 489, 492 (Iowa 2000) (citations omitted).
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III. Discussion.
Jr. claims the juvenile court erred in finding there was clear and convincing
evidence to support termination of his parental rights under either section
232.116(1)(d) or 232.116(f) and in concluding that termination was in D.G.’s best
interests.
Because we conclude termination of Jr.’s parental rights was proper under
section 232.116(1)(f) (child over four years of age, adjudicated CINA, out of
parent’s custody twelve of last eighteen months, and cannot be returned to
parent’s custody), we need not and do not address his claim regarding section
232.116(1)(d). See In re S.R., 600 N.W.2d 63, 64 (Iowa Ct. App. 1999) (“When
the juvenile court terminates parental rights on more than one statutory ground,
we need only find grounds to terminate under one of the sections cited by the
juvenile court to affirm.”). As the first three elements of section 232.116(1)(f) are
clearly met, Jr.’s claim implicates only the fourth element of that section. This
element is proved when the evidence shows the child cannot be returned to the
parent without remaining CINA. In re R.R.K., 544 N.W.2d 274, 277 (Iowa Ct.
App. 1995). The threat of probable harm will justify termination of parental rights,
and the perceived harm need not be the one that supported the child’s removal
from the home. In re M.M., 483 N.W.2d 812, 814 (Iowa 1992).
Jr. argues the State “provided no evidence that the placement with the
father would be harmful to the child’s emotional and mental well being.”
However, Jr.’s own conduct provides the evidence. The unauthorized change in
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D.G.’s care and its adverse consequences to D.G.’s behavior supports a finding
that placement with Jr. would be harmful.
Our primary concern is the child’s best interests. “In this connection, we
look to the child’s long-range as well as immediate interests.
Hence we
necessarily consider what the future likely holds for the child if returned to his or
her parents.”
In re Dameron, 306 N.W.2d 743, 745 (Iowa 1981) (stating
evidence of a parent’s past performance may be indicative of the quality of the
future care that parent is capable of providing).
Our de novo review reveals that Jr.’s overall progress in this case was—
as found by the court—“too little, too late.” As our court has often stated, a
parent does not have unlimited time in which to correct his deficiencies. In re
H.L.B.R., 567 N.W.2d 675, 677 (Iowa Ct. App. 1997). “Children simply cannot
wait for responsible parenting. Parenting cannot be turned off and on like a
spigot. It must be constant, responsible, and reliable.” In re L.L., 459 N.W.2d
489, 495 (Iowa 1990). D.G. needs permanency. We conclude that termination is
in D.G.’s best interests.
AFFIRMED.
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