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In re G.O.

Court of Appeals of Iowa

December 18, 2019

IN THE INTEREST OF G.O., Minor Child, A.O., Father, Appellant.

          Appeal from the Iowa District Court for Butler County, Peter B. Newell, District Associate Judge.

         A father appeals the termination of his parental rights.

          Elizabeth M. Wayne of Papenheim Law Office, Parkersburg, for appellant father.

          Thomas J. Miller, Attorney General, and Gretchen Witte Kraemer, Assistant Attorney General, for appellee State.

          Elizabeth A. Batey of Vickers Law Office, Greene, attorney and guardian ad litem for minor child.

          Considered by Vaitheswaran, P.J., Mullins, J., and Vogel, S.J. [*]


         The father of G.O., born October 2018, appeals the termination of his parental rights under Iowa Code section 232.116(1)(h) and (l) (2019). The father asserts (1) the court should have continued the hearing because he did not receive proper notice of the hearing, (2) the State failed to present clear and convincing evidence warranting termination, and (3) termination is not in the best interests of the child. On our de novo review, In re M.W., 876 N.W.2d 212, 219 (Iowa 2016), we find no merit to his arguments and affirm.[1]

         Just four days after G.O.'s birth, and while she remained hospitalized, a temporary order was entered, placing her legal custody in the Iowa Department of Human Services (DHS) and care with family members. The mother admitted to using both methamphetamine and marijuana throughout the pregnancy, which likely caused G.O.'s numerous health issues, including her critically poor kidney function. The father also admitted to a long history of methamphetamine use and was currently charged with various drug offenses.

         DHS offered the family services; the father completed a substance-abuse evaluation but failed to follow through with recommended treatment. With the father failing to make progress toward reunification, the State petitioned for termination of the parent-child relationship on May 17, 2019. Although the court ordered the father to file an affidavit of financial status if he desired to have counsel appointed for him, the father failed to take any steps to secure this assistance. The matter came on for hearing on June 26; the father appeared, requesting a continuance and that counsel be appointed to represent him. With the financial affidavit completed, the court appointed counsel and granted the continuance. In open court and by written order, the court advised the father that it was continuing the hearing until September 4.[2] After several attempts by the sheriff to personally serve the father, he was finally personally served on the day set for the termination hearing, in the parking lot of the courthouse. The father appeared for the hearing with counsel and requested another continuance. He acknowledged through counsel that he knew of the date and time for the hearing, and the court denied the continuance.

         On appeal, the father again asserts the court should have granted a second continuance of the termination hearing because he was improperly served with notice of termination. We review the denial of a motion for continuance for an abuse of discretion. In re C.W., 554 N.W.2d 279, 281 (Iowa Ct. App. 1996). The father correctly cites Iowa Code section 232.112(3), which provides notice by personal delivery "shall be served not less than seven days prior to the hearing."

When any aspect of a normal service process is dispensed with, a review of the facts is required to determine the appropriate level of diligence by the state and the type of notice required. The notice must be reasonably calculated to apprise the parent of the pending proceeding in light of the circumstances concerning that particular parent.

In re R.E., 462 N.W.2d 723');">462 N.W.2d 723, 724 (Iowa Ct. App. 1990). As the juvenile court found, the father was notified in person of the date and time during the originally scheduled hearing on June 26 and in the written order of the same date. He then appeared with counsel at the rescheduled September 4 hearing. We conclude this notice of the termination hearing was sufficient and the juvenile court did not abuse its discretion in denying the father's second motion to continue. See id. at 727 (finding a mother had sufficient notice of the termination of her parental rights where the mother participated in the CINA action that preceded termination, her attorney had notice of termination, and the State performed a reasonably diligent search to serve the mother).[3]

         We turn next to review whether the State proved by clear and convincing evidence the father's rights should be terminated under Iowa Code section 232.116(1)(h).[4]See In re A.B., 815 N.W.2d 764, 774 (Iowa 2012) (stating that when rights are terminated on more than one statutory ground, the reviewing court may affirm the juvenile court's order on any ground supported by the record). We review termination proceedings de novo. Id. at 773. The father asserts the State failed to prove G.O. would be subjected to adjudicatory harm as provided in section 232.102 if returned to his care. Yet, the father has never shown he could safely parent the child, has only sporadically attended offered visits, and has not complied with offered services to move toward reunification. He testified that he was essentially homeless-occasionally staying "at a buddy's house" or "sleeping in my vehicle"-and admitted the child could not go home with him at the time of the hearing. He claimed he last used methamphetamine three weeks before the September 4 hearing, which was his longest period of sobriety since ...

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