In the Interest of O.P., O.P., R.P., and L.P., Minor Children ( 2020 )

IN THE COURT OF APPEALS OF IOWA
No. 19-1733
Filed June 3, 2020
IN THE INTEREST OF O.P., O.P., R.P., and L.P.,
Minor Children,
J.P., Father,
Appellant.
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Appeal from the Iowa District Court for Warren County, Brendan Greiner,
District Associate Judge.
A father appeals the termination of his parental rights to four children.
AFFIRMED.
Jeremy M. Evans of Carr Law Firm, P.L.C., Des Moines, for appellant father.
Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant
Attorney General, for appellee State.
M. Kathryn Miller of Juvenile Public Defender, Des Moines, attorney and
guardian ad litem for minor children.
Tara M. Elcock of Elcock Law Firm, PLC, Indianola, for mother.
Considered by Mullins, P.J., May, J., and Blane, S.J.*
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BLANE, Senior Judge.
J.P., the father of four children (Or.P, Op.P, R.P., and L.P.1) appeals the
termination of his parental rights. The juvenile court found the State proved the
statutory grounds for termination under Iowa Code section 232.116(1)(f) and (h)
(2019). J.P.’s only preserved contention is that the department of human services
(DHS) failed to make reasonable efforts toward reunification because it failed to
give J.P. phone calls with the children while he was incarcerated. Finding DHS
made reasonable efforts, we affirm.
We review termination orders de novo. In re M.W., 876 N.W.2d 212, 219
(Iowa 2016). We are not bound by the juvenile court’s fact findings but we give
them weight, particularly regarding witness credibility. Id.
Iowa Code section 232.102(7) requires the DHS to “make every reasonable
effort to return the child to the child’s home as quickly as possible consistent with
the best interests of the child.” See In re C.B., 611 N.W.2d 489, 493 (Iowa 2000).
“The State must show reasonable efforts as a part of its ultimate proof the child
cannot be safely returned to the care of a parent.” Id. The reasonable-efforts
requirement is not “a strict substantive requirement of termination.” Id. But when
relying on paragraphs (f) and (h) as the grounds for termination, as it did here, the
State must show the DHS made reasonable efforts toward reunification as part of
its ultimate burden of proof. See In re L.T., 924 N.W.2d 521, 527 (Iowa 2019).
First, although J.P. asks in appellate briefing for additional time to work
toward reunification, the State argues the issue was not preserved for appellate
1At the time of the hearing, the children were ages four, three, two, and one year
old.
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review. J.P. does not state where in the record he preserved this issue. On our
review, we determine he did not make an extension request during the termination
hearing, and the juvenile court did not address the issue. Therefore, we conclude
J.P. did not preserve error. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa
2002) (“It is a fundamental doctrine of appellate review that issues must ordinarily
be both raised and decided by the district court before we will decide them on
appeal.”).
Second, the State contends J.P. failed to preserve error on his reasonable-
efforts claim because he failed to raise it before the termination hearing. See In re
S.R., 600 N.W.2d 63, 65 (Iowa Ct. App. 1999) (finding, to preserve error, the parent
must “demand other, different or additional services prior to the termination
hearing”). In fact, the court continued the original date of the termination hearing,
with the agreement of all parties, because it learned J.P. had requested and not
yet received phone calls with the children while in the prison where he was
incarcerated. We will assume without deciding that this course of action was
sufficient to notify the court of J.P.’s request for additional phone visitation prior to
the termination hearing. See In re C.H., 652 N.W.2d 144, 148 (Iowa 2002)
(“[V]oicing complaints regarding the adequacy of services to a social worker is not
sufficient. A parent must inform the juvenile court of such challenge[s].”).
Nonetheless, J.P.’s subsequent conduct rendered it nearly impossible for DHS to
grant his request and leads us to conclude DHS’s efforts were reasonable.
The original termination hearing was scheduled for June 3, 2019. J.P. was
then in prison and had been in prison since August 2018. The June 3 hearing was
continued to September, and the social worker attempted to set up phone calls
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between J.P. and the children through his counselor at the Newton Correctional
Facility. The worker did not hear back from the counselor, and J.P. was released
from the prison in early July. His parole was conditioned on placement to the
Salvation Army. The social worker immediately attempted to contact J.P. to set up
visitation, but after only a couple days of release, J.P. had absconded from the
Salvation Army. The social worker tried an alternate phone number J.P. had
provided but found it was an incorrect number.
In late July, J.P. was apprehended and returned to the Newton facility. The
social worker again attempted to contact J.P.’s prison counselor, but the
department of corrections transferred J.P. to the Mount Pleasant facility. Within a
couple weeks of the termination hearing, the social worker had made contact with
J.P.’s new counselor but had not yet established phone calls.
“[W]hat constitutes reasonable services varies based upon the
requirements of each individual case.” Id. at 147. In this case, we find DHS made
reasonable efforts. DHS’s efforts were hindered by J.P.’s late request for contact
with his four young children. Although he was released from prison within a matter
of weeks, he chose to abscond from the release program and ended up on the run
and beyond contact with DHS and his children. After he was apprehended and
returned to prison, the department of corrections moved him to a different facility
where the DHS had to establish contact with a new counselor and had not been
able to set up phone calls before the continued termination hearing. The social
worker acted reasonably in attempting to contact J.P. in two different prisons, at
his request. He had an opportunity to re-establish face-to-face contact but foiled
that by absconding. DHS’s efforts were reasonable in attempting to provide this
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requested service. Therefore, we affirm the order terminating J.P.’s parental
rights.
AFFIRMED.