In re Z.H., 07-1048.

CourtCourt of Appeals of Iowa
Citation740 N.W.2d 648
Docket NumberNo. 07-1048.,07-1048.
PartiesIn the Interest of Z.H., Minor Child, A.H., Father, Appellant.
Decision Date06 September 2007
740 N.W.2d 648
In the Interest of Z.H., Minor Child,
A.H., Father, Appellant.
No. 07-1048.
Court of Appeals of Iowa.
September 6, 2007.

[740 N.W.2d 649]

Alexandra M. Nelissen of Nelissen & Juckette, P.C., for appellant father.

Jesse Macro, Des Moines, for mother.

Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, John P. Sarcone, County Attorney, and Corey McClure, Assistant County Attorney, for appellee State.

Kayla Stratton, Des Moines, for minor child.

Considered by HUITINK, P.J., and VOGEL and BAKER, JJ.


I. Background Facts and Prior Proceedings

The father in this appeal, Anthony, has a mild form of mental retardation. His former wife also has various mental health issues. Their five-year-old son, Zachary, has been identified as a child with special needs.

The Iowa Department of Human Services (DHS) became involved in this case in 2004 when Zachary was two years old. At that time, Anthony and his wife were in the midst of divorce proceedings.1 Zachary was living with his father and maternal grandmother. The State filed a child in need of assistance (CINA) petition claiming Zachary was not receiving critical care. At the pre-conference hearing, the court inquired as to whether either parent was of Native American heritage. Neither parent claimed they had any Native American ancestry.

Zachary was adjudicated CINA on September 27, 2004. He was allowed to stay with his father, but DHS eventually began removal proceedings when it received numerous reports of neglect. For example,

740 N.W.2d 650

Zachary's school reported that he often came to school in soiled diapers and with a ravenous hunger. Anthony told one service provider that he sometimes allowed Zachary to bathe himself so that Zachary could have privacy. During one in-home visit, Zachary began to play with an electrical socket. Anthony did nothing to stop Zachary, so the service provider had to intervene. The guardian ad litem who visited Zachary also found a cigarette lighter amongst his toys. On April 2, 2006, Zachary was removed and placed in foster care.

Anthony made limited progress towards reunification during the next twelve months. He received numerous services, but providers reported concerns over his ability to learn, practice, and retain essential parenting skills. He required regular reminders to perform basic parental functions such as when to give Zachary his required medication. Anthony did not respond well to the provider's suggestions and was very defensive. One provider described him as belligerent. Anthony was also very uncooperative with his DHS caseworker and avoided communicating with him directly.

While he was uncooperative with services, Anthony did make significant strides in other areas of his life. He got a job at a local retail store and was promoted to a stock-supervisor. He also rented his own apartment and took steps to child-proof the home. Anthony eventually progressed to ninety-minute unsupervised visitations; however, he never progressed to the point where overnight visitations were appropriate.

The State filed the present petition to terminate Anthony's parental rights on April 25, 2007. At the pre-termination conference, Anthony informed the court that he had Native American ancestry. After questioning Anthony, the court determined Anthony "could not clearly identify the names of relatives and/or provide enough definitive information so notices could even be sent." The court gave Anthony seven days to provide written information about his Native American ancestry. Even though the court personally handed him information on the Indian Child Welfare Act (ICWA), Anthony did not provide further information on his heritage within the seven-day time limit. By the time of the termination hearing, Anthony still had not provided the court with any further information about his ancestry. Based on the limited facts at hand, the court found the ICWA was inapplicable and continued on with the hearing. The court ultimately terminated his parental rights pursuant to Iowa Code sections 232.116(1)(d) (child CINA for neglect, circumstances continue despite receipt of services) and (f) (child four or older, child CINA, removed from home for twelve of last eighteen months, and child cannot be returned home) (2007).

On appeal, Anthony2 contends (1) DHS did not make reasonable efforts to find and approve an individual who could help Anthony provide support and supervision; (2) there was not clear and convincing evidence to terminate his parental rights under Iowa Code sections 232.116(1)(d) or (f); (3) termination was not in Zachary's best interests; and (4) the court failed to comply with the federal ICWA and the Iowa ICWA.

II. Standard of Review

We review termination of parental rights de novo. In re J.E., 723 N.W.2d 793, 798 (Iowa 2006). Grounds for termination must be proven by clear and convincing

740 N.W.2d 651

evidence. Id. Our primary concern is the best interests of the child. Id.

III. Merits

A. Reasonable Efforts

Throughout these proceedings, Anthony has tried to have someone else available to help him care for Zachary. On appeal, Anthony claims he "was successful in the past in raising his child with the assistance from a `live in'" and contends the State did not make "reasonable efforts" to assist him "in finding and/or approving an individual who could provide support and supervision . . . which could have aided in the reunification of the family."

We disagree. First, there is no evidence Anthony ever successfully raised his child with the assistance of a "live in." Zachary was adjudicated a child in need of assistance because Anthony could not provide for his care. The court allowed Zachary to remain with Anthony, and Anthony utilized both his mother and a "nanny" to help him care for Zachary. Even though he received this assistance, Zachary was removed from his care amidst numerous reports of neglect.

Second, we find the State's efforts to assist Anthony were, under the circumstances, reasonable. As mentioned above, Anthony initially utilized a nanny to help him care for Zachary. When he inquired about hiring another nanny, DHS performed a background check and found this person acceptable. For unknown reasons, Anthony decided not to use this person. Anthony suggested another individual, but this person failed the DHS background check. Anthony suggested a third person, but DHS found this person unacceptable because she was not cooperative with the foster mother. We find no merit to Anthony's argument that the State's efforts were not reasonable simply because DHS rejected two of the three people he suggested.

B. Statutory Grounds

Anthony contends the evidence does not support termination under sections 232.116(1)(d) or (f). Because we find statutory grounds for termination under section 232.116(1)(f), we need not address the arguments pertaining to the other statutory ground listed by the district court. 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...

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