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In re E.S.

Court of Appeals of Iowa

September 25, 2019

IN THE INTEREST OF E.S., Minor Child, E.S., Father, Appellant.

          Appeal from the Iowa District Court for Clarke County, Monty Franklin, District Associate Judge.

         A father appeals the termination of his parental rights to his seven-year-old son.

          Adam M. Stone, Des Moines, for appellant father.

          Thomas J. Miller, Attorney General, and Meredith L. Lamberti, Assistant Attorney General, for appellee State.

          Marc Elcock of Elcock Law Firm, Osceola, attorney and guardian ad litem for minor child.

          Considered by Tabor, P.J., and Mullins and Bower, JJ.

          Tabor, Presiding Judge.

         "He's always taken an interest in [E.S.]." The caseworker testified Elija had a near-perfect record of attending visits with his seven-year-old child. And the interactions were "overall positive" between father and son. Yet the juvenile court terminated Elija's parental rights, finding he failed to maintain significant and meaningful contact with E.S. Because our de novo review reveals inadequate proof of that statutory ground for termination, we reverse the juvenile court order and remand for further proceedings.[1]

         The Iowa Department of Human Services (DHS) removed E.S. from the care of his mother, Brittany, in July 2017 based on her drug abuse.[2] E.S.'s father, Elija, was not living in the home with Brittany and E.S. at the time of removal. Elija's participation in the case started in mid-September 2017 when he received notice of the child-in-need-of-assistance (CINA) hearing.

         The DHS case permanency plan issued in December 2017 directed Elija to undergo substance-abuse and mental-health evaluations. He completed those evaluations, neither of which recommended further treatment.

         In August 2018, Elija began supervised visits with E.S. Elija was a reliable participant. He met four times with the FSRP (Family Safety, Risk, and Permanency) worker alone. And Elija attended thirty of thirty-two visits offered with his son. During those two missed visits, Elija was hospitalized with a serious heart condition. The FSRP reports consistently noted E.S. was happy to see his father, they exchanged hugs, and Elija provided his son with meals and discussed appropriate topics.

         The DHS did have concerns about Elija's use of controlled substances. He tested positive for cocaine and marijuana in August 2018. Elija was honest about smoking marijuana but lied about using cocaine. He said he had been sober for three years but relapsed because of the stress of the CINA case. He asserted he lied because he feared the consequences from the DHS. Elija was on parole for a felony drug conviction and was set to discharge his sentence in March 2020.

         The State filed its petition to terminate parental rights in December 2018. The juvenile court held the termination hearing in March 2019. Elija testified he had been involved with his son's life since he cut the umbilical cord in the delivery room. Elija lived with Brittany and helped feed, clothe, and bathe E.S. until the child was about four years old. After Brittany and Elija separated, they had an informal shared-care agreement. Brittany stopped allowing Elija time with E.S. in the months leading up to the DHS involvement with the family.

         Elija further explained he was now in a stable relationship with his fiancé Emma with whom he has two daughters. Elija expressed a desire for E.S. to have a relationship with those half-siblings. Elija detailed his health conditions including a peptic ulcer, gastro reflux, and back problems. He ...


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