In the Interest of H.T., Minor Child

IN THE COURT OF APPEALS OF IOWA

No. 20-0748
Filed July 22, 2020

IN THE INTEREST OF H.T.,
Minor Child,

W.T., Father,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Rachael E. Seymour,

District Associate Judge.

A father appeals the termination of his parental rights to his child.

AFFIRMED.

Judy Johnson of JDJ Law Firm PLLC, Des Moines, for appellant father.

Thomas J. Miller, Attorney General, and Charles K. Phillips, Assistant

Attorney General, for appellee State.

Alexandra Nelissen, Des Moines, attorney and guardian ad litem for minor

child.

Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.
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VAITHESWARAN, Presiding Judge.

A father appeals the termination of his parental rights to his child, born in

2017. When the child was one year old, his mother voluntarily placed him with

friends. The child remained in their care throughout the proceedings.

In time, the mother gave birth to another child. Following the birth, the

mother tested positive for several illegal substances. The department intervened,

and the newborn, as well as the older child who is the subject of this appeal, were

formally removed from the mother’s custody.

Paternity testing subsequently confirmed the identity of the older child’s

father. He was in prison, having violated his special sentence of lifetime parole

following his guilty plea to third-degree sexual abuse of a minor. He remained

incarcerated throughout the child-in-need-of-assistance proceeding and

termination hearing. He did not expect to discharge his sentence until 2023. He

essentially conceded he was not in a position to have the child returned to his

custody at the time of the termination hearing but argued his relatives were willing

and able to serve as caretakers.

The juvenile court determined that “none of the Father’s proposed relatives

would be an appropriate placement.” The court terminated the father’s parental

rights pursuant to Iowa Code section 232.116(1)(h) (2019), which requires proof

of several elements including proof the child cannot be returned to the parent’s

custody.

On appeal, the father does not challenge the ground for termination cited

by the juvenile court. He contends (I) the court should have placed the child in a

guardianship with one of his relatives as an alternative to termination;
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(II) termination of his parental rights was not in the child’s best interests; and

(III) the department of human services failed to timely notify and investigate his

relatives as potential placement options.

I. Placement with a Relative

Iowa Code section 232.117(3)(c) authorizes post-termination placement of

a child with several entities or persons, including a “relative.” In finding the father’s

relatives inappropriate, the juvenile court noted that an aunt who came forward

tested positive for cocaine; the father’s sister failed to provide a drug screen and

did not “testify regarding her willingness to assume custody”; and the father’s

grandmother lived with the relative who tested positive for cocaine, was “69 years

old and would be in her mid-80’s when [the] child would graduate from high school,”

and apparently intended to allow the father to assume custody “after he was

released from prison,” notwithstanding his conviction for sexual abuse of a minor.

The father takes issue with these findings.

The juvenile court’s finding that the aunt was not an appropriate placement

option was supported by the record. The father conceded as much.

The court’s finding as to the father’s sister was more problematic. The

father identified her as a potential placement months before the termination

hearing. The department social worker overseeing the case stated he performed

a background check, which “did not” disclose any concerns. He also checked the

abuse registry, which disclosed no concerns. He spoke to the sister and told her

he would be requesting a drug screen. He acknowledged that he failed to follow

up until a few days before the termination hearing. At that point, the sister told him

she could not come in for the drug test because of work obligations. The social
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worker identified a time on the next day. The sister said she would have to check.

That was the extent of the department’s investigation into the sister before the first

day of the termination hearing.

The termination hearing did not end after the first day. It continued for

another two days over a seven-week period. On the third day, the department

employee testified the sister had yet to come in for a drug test. That testimony

supports the juvenile court’s finding that the child could not be placed with the

father’s sister.

We are left with the father’s grandmother. She testified that, although she

lived with the aunt who tested positive, she had plans to relocate in the immediate

future. In her words, “I’m intending to get my own place, so I can have more room

and everything.” She also stated that the department employee overseeing the

case did not contact her about having the child placed with her until sixty days

before the final day of the termination hearing. At the same time, she minimized

the culpability of her grandson in the crime that led to his conviction.

The department employee testified the grandmother was excluded as a

placement option because of her unwillingness to acknowledge her grandson’s

guilt. We are persuaded the department’s rationale was reasonable. The father

was precluded from having any contact with minors and, although the grandmother

testified she would abide by the no-contact order, her comments about her

grandson suggested otherwise.

On our de novo review of the record, we conclude the juvenile court

appropriately declined to place the child in a guardianship with one of the father’s

relatives.
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II. Best Interests

Termination must be in the child’s best interests. See Iowa Code

§ 232.116(2). The father contends the child’s best interests were not served

because the connections with his family were “severed.” But the severance was

of his own making. The father committed a crime against a child. As noted, he

was ordered to have no contact with any children until he completed treatment,

which he had yet to begin. When asked whose fault it was that he did not have a

chance to raise his son, he responded, “Ultimately, it’s my fault that I have not

taken full consideration⁠—or full responsibility.” On our de novo review, we

conclude termination was in the child’s best interests.

III. Reasonable Efforts

The department has an obligation to make reasonable efforts to reunify

parent and child. See In re C.B., 611 N.W.2d 489, 492–93 (Iowa 2000). At the

time of the termination hearing, the father informed the juvenile court that he

wished to challenge the department’s reasonable reunification efforts and,

specifically, its failure to pursue placement options with his relatives. The father

tangentially raised the question of the department’s statutory obligation to notify

relatives of the proceedings. We will begin with that obligation.

Iowa Code section 232.84(2) states:

Within thirty days after the entry of an order under this chapter
transferring custody of a child to an agency for placement, the
agency shall exercise due diligence in identifying and providing
notice to the child’s grandparents, aunts, uncles, adult siblings,
parents of the child’s siblings, and adult relatives suggested by the
child’s parents, subject to exceptions due to the presence of family
or domestic violence.
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The “language places the onus on the department rather than the parents to

identify relatives subject to notification.” In re N.V., 877 N.W.2d 146, 151 (Iowa Ct.

App. 2016) (quoting In re R.B., 832 N.W.2d 375, 380 (Iowa 2013)).

The department failed to provide the required notice to the father’s relatives

until after the termination hearing began. Nonetheless, under the particular

circumstances of this case, reversal of the termination decision is not required.

See R.B., 832 N.W.2d at 382.

During the child-in-need-of-assistance proceeding, the father asked the

court to place the child with his aunt. The juvenile court ordered the department

to “meet with [the aunt] by the end of the week regarding possible placement” and

ordered the aunt to “provide a drug [test] upon DHS request.” The department

complied with the order, as did the aunt and, as noted, the drug test was positive

for cocaine. The aunt was ruled out as a placement option.

In the same order denying placement with the aunt, the juvenile court

advised the parents to identify services needed to facilitate reunification and

warned them that “failure to identify a deficiency in services may preclude the party

from challenging the sufficiency of services in a termination of parental rights

proceeding.” The order was filed five months before the termination hearing.

The father did not file a motion to have the department pursue other relative

placement options until the first day of the termination hearing. The State argued

his request came too late, an argument the juvenile court accepted.

The State’s argument, which it reprises on appeal, was well taken. We have

often stated requests for services must be made during the child-in-need-of-

assistance proceeding. See id. (“Custody of the children was transferred to the
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department months before the termination hearing, yet no motion was filed until

days before the termination hearing.”). The pronouncement makes sense where

the parent is challenging the department’s failure to provide the required relative

notification because that notice contains a detailed description of the relatives’

options and obligations with respect to the child. See N.V., 877 N.W.2d at 151.

An early challenge also would afford the department an opportunity to correct the

oversight before the case proceeds to termination. See R.B., 832 N.W.2d at 382

(noting that if a motion to continue for failure to comply with the relative notification

requirement had been filed sooner, “the court still would have been in a position to

order notification of the [relative] without materially compromising the statutory time

period preceding termination”).

We recognize “the reasonable efforts obligation runs until the juvenile court

has entered a final written order of termination.” In re L.T., 924 N.W.2d 521, 528

(Iowa 2019). We also recognize “[t]he 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. at 527 (quoting C.B., 611 N.W.2d at 493). But where the goal is to establish

and maintain a relationship with family members that may endure through

termination and beyond, the sooner the challenge to the absence of notification

the better. Cf. N.V. 877 N.W.2d at 148 (citing relatives’ significant involvement

with the child before the department became involved and citing relatives’ motions

to intervene in the child-in-need-of-assistance proceedings and their reference to

the statutory notice requirements).

By the time of the termination hearing, the department’s reasonable-efforts

obligation was limited to “documentation of the steps taken to make and finalize
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an adoption or other permanent placement.” L.T., 924 N.W.2d at 528–29. The

opportunity for the child to develop a relationship with his paternal relatives was

effectively foreclosed. And the ability of the department to fully investigate the

relatives for possible placement was limited. Under these circumstances, we

conclude the department did not violate its reasonable-efforts mandate by

proceeding with its plan to continue permanent placement of the child with the

family who cared for him from his infancy.

We affirm the termination of the father’s parental rights to the child.

AFFIRMED.