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In re T.M.

Court of Appeal of Iowa

June 12, 2013

IN THE INTEREST OF T.M. AND E.M., Minor Children, M.M., Father, Appellant.

Appeal from the Iowa District Court for Fayette County, Alan D. Allbee, Associate Juvenile Judge.

A father appeals from the termination of his parental rights to his two children.

Brannon Burroughs, Sumner, for appellant father.

Thomas J. Miller, Attorney General, Katherine S. Miller-Todd, Assistant Attorney General, W. Wayne Saur, County Attorney, and Nathan J. Lein, Assistant County Attorney, for appellee State.

Thomas Katsumes, Elgin, for appellee mother.

John Sullivan, Oelwein, attorney and guardian ad litem for minor children.

Considered by Eisenhauer, C.J., and Potterfield and Tabor, JJ.

POTTERFIELD, J.

A father appeals from the termination of his parental rights to two children, T.M. and E.M., arguing clear and convincing evidence did not exist for the termination of his parental rights, and the department of human services (DHS) failed to make reasonable efforts to facilitate reunification. We affirm, finding clear and convincing evidence supports termination, and reasonable efforts were made to unify the children with their father.

I. Facts and proceedings.

In March of 2012, a report was made to DHS that T.M. and E.M.'s mother was using methamphetamine in the presence of the children, and that the children were playing with needles.[1] Investigation into the allegation showed the mother was using methamphetamine. The children were removed on April 2, 2012, and adjudicated children in need of assistance (CINA) later that month. The children's father was incarcerated for a repeat sex offense at this time. A dispositional hearing was held June 1, and custody was transferred to DHS for placement in foster care. The father was released on parole from prison later that month and moved to a residential facility.

The father has a history of sex offenses; he exposed himself to two adult women—one in 2006 and another in 2007. He was incarcerated for these two offenses and released in 2008. He was then charged with failure to register as a sex offender, possession of controlled substances, and possession of precursors to the manufacture of methamphetamine. In 2010, he again exposed himself to two females, this time two twelve-year-olds, and was sent to prison. A psychosexual report conducted of the father showed his profile was similar to a reference group of child molesters.

E.M. was born after the father was again incarcerated; T.M. was born the year prior. The children have had very limited interaction with their father. After he was put on parole in June of 2012, he was restricted from having contact with any children, including his own. DHS and the department of corrections eventually worked out a system where the father could meet with the children, initially for thirty-five minute sessions at a time, though the meetings tended to be sporadic and held in public places. These visits began in September of 2012. At a permanency review hearing in November of 2012, the court found it was not likely the children could be returned to either parent with an additional six months of services, noting:

This decision is especially difficult as respects the children's father who during his short period of release from incarceration has done all that has been asked of him. Sadly, all he can do is likely not going to be enough given the history and the children's ages. To his credit, the children's father has participated in all hearings concerning his children, whether by telephone from prison or in person after his release. He has been respectful to the court and fully cooperative with the Department of Human Services and direct service providers. The court must make its decision, however, not on hope but on the likely outcome. The best predictor of future conduct is past behavior. Past behavior with regard to sexual offenses and drug use does not bode well in the ...

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