In the Interest of K.S.-t., Minor Child, R.T., Father, P.S., Mother ( 2014 )

IN THE COURT OF APPEALS OF IOWA
No. 14-0979
Filed November 13, 2014
IN THE INTEREST OF K.S.-T.,
Minor Child,
R.T., Father,
Appellant,
P.S., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Rachael E. Seymour,
District Associate Judge.
A mother and father appeal the termination of their parental rights to their
child, born in 2013. AFFIRMED.
Tammi Blackstone of Harrison & Dietz-Kilen, P.L.C., Des Moines, for
appellant father.
Steven L. Cooper of Cooper, Goedicke, Reimer & Reese Law Firm, P.C.,
West Des Moines, for appellant mother.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd Assistant
Attorney General, John P. Sarcone, County Attorney, and Christina M. Gonzalez,
Assistant County Attorney, for appellee State.
Erin Mayfield of the Youth Law Center, Des Moines, attorney and guardian
ad litem for minor child.
Considered by Vaitheswaran, P.J., and Doyle and McDonald, JJ.
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VAITHESWARAN, P.J.
A mother and father appeal the termination of their parental rights to their
child, born in 2013. The mother preliminarily challenges an order transferring
custody of the child to the department of human services. She contends (1) the
juvenile court’s decision was not supported by the law or evidence, (2) the
juvenile court’s basis for ordering a transfer of care was “barred by res judicata,”
and (3) the transfer was not in the child’s best interests. The mother also
challenges the termination decision, arguing (1) the record lacks clear and
convincing evidence to support the grounds for termination cited by the juvenile
court, (2) termination was not in the child’s best interests, and (3) the juvenile
court should have invoked certain statutory exceptions to termination. The father
challenges the grounds for termination cited by the juvenile court.
I. Mother
The mother was incarcerated for shoplifting and transitioned to a women’s
residential facility, where she gave birth to the child who is the subject of this
action. She has two older children who were the subject of separate
proceedings. The mother’s parental rights to one of those children were
terminated.
The child in this action was adjudicated in need of assistance (CINA)
based on the mother’s transition from incarceration, her relationship and ongoing
contact with the child’s violent father, and her unwillingness to seek a no contact
order barring interaction with him. The juvenile court initially allowed the child to
remain with the mother and ordered a battery of services to assist her in
maintaining custody of him. According to the department, the mother took “very
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good care” of the child, had “very warm interactions” with him, and was “strongly
bonded” to him.
The mother was released from the women’s residential facility and moved
to an apartment, which a service provider found to be clean and appropriate.
According to the provider, the baby “appeared to be well cared for and alert.”
The juvenile court entered a dispositional order reaffirming the mother’s custody
of the child, subject to compliance with all prior services and department and
probation expectations. Among the expectations was an instruction to “abstain[]
from activities that are illegal.”
For months, the mother continued her exemplary care of the child. She
also earned wages, attended a class to address domestic violence issues, took
the child to protective day care when she was working, and generally cooperated
with the department and service providers. There was one exception: drug
testing. The mother missed several tests and admitted to using marijuana on
one occasion.
When the child was ten months old, the State requested modification of
the dispositional order to have custody of the child transferred to the department.
The court granted the request, subject to an evidentiary hearing. The child was
placed in foster care.
Meanwhile, an outpatient drug treatment provider issued a report giving
the mother a “guarded” prognosis “due to her lack of commitment and
engagement in recovery supports.” The provider’s assessment was less harsh at
an evidentiary hearing a month later; she testified the mother was discharged
from the program because further services were unnecessary. She noted a
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change in the mother during the last three weeks of services, including a
willingness to provide urine samples, which tested negative for the presence of
drugs.
Unfortunately, the mother did not sustain a drug-free lifestyle. She
admitted to using marijuana shortly after her discharge from the outpatient
program. The mother flaunted domestic violence concerns by inviting the child’s
father to a birthday party for the child organized by the foster parents, without
seeking permission from the department or the foster parents. The juvenile court
relied on these and other circumstances to conclude the child should remain out
of her care. The court modified the dispositional order to reflect this change of
custody.
The case proceeded to termination. Following another evidentiary
hearing, the court concluded the State proved termination under Iowa Code
sections 232.116(1)(d) (requiring proof the parent was offered or received
services to correct the circumstances leading to the adjudication but the
circumstances continued to exist) and (g) (requiring proof the parent continues to
lack the ability or willingness to respond to services that would correct the
situation and an additional period of rehabilitation would not correct the situation).
Iowa Code § 232.116(1)(d), (g) (2013).
As noted, the mother challenges the juvenile court’s decision to transfer
custody of the child to the department and its ultimate decision to terminate her
parental rights. Our review of both decisions is de novo. In re P.L., 778 N.W.2d
33, 40 (Iowa 2010).
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A. Modification of Dispositional Order
1. Grounds for Transfer
A court may modify a dispositional order if “[t]he efforts made to effect the
purposes of the order have been unsuccessful and other options to effect the
purposes of the order are not available.” Iowa Code § 232.103(4)(c). Custody of
the child should not be transferred unless there is clear and convincing evidence
the child cannot be protected from “some harm which would justify the
adjudication of the child as a child in need of assistance.” Iowa Code
§ 232.102(5)(a)(2). Additionally, “continuation of the child in the child’s home”
must “be contrary to the welfare of the child” and reasonable efforts must have
been made to keep the child in the home. Iowa Code § 232.102(5)(b).
There is no question “[t]he efforts made to effect the purposes” of the
dispositional order were “unsuccessful and other options to effect the purposes of
the order are not available.” Iowa Code § 232.103(4)(c). As noted, the mother
was to abstain from illegal activities. She did not. She admitted to marijuana
usage on two occasions. Additionally, missed drug tests were treated as
positive. The mother knew her drug use would jeopardize her chances of
maintaining and regaining custody of her child. This knowledge did not give her
pause.
We turn to whether the State proved “some harm which would justify the
adjudication of the child as a child in need of assistance.” Iowa Code
§ 232.102(5)(a)(2). The mother contends she did not care for the child while
under the influence and “[i]n nearly four years of Juvenile Court involvement no
. . . report has ever noted any behavior indicators of drug usage by the Mother.”
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The mother’s assertion finds some support in a recent Iowa Supreme
Court opinion, In re J.S., 846 N.W.2d 36, 43-44 (Iowa 2014). There, the court
was faced with a mother who admitted to methamphetamine use and repeatedly
tested positive for the presence of the substance in her system. In re J.S., 846
N.W.2d at 39-40. The juvenile court adjudicated the child in need of assistance
pursuant to Iowa Code section 232.2(6)(b), which applies to a child “[w]hose
parent, guardian, other custodian, or other member of the household in which the
child resides has physically abused or neglected the child, or is imminently likely
to abuse or neglect the child.” The Iowa Supreme Court reversed the
adjudication. The court held “the State failed to prove any specific prior incidents
of abuse or neglect. Its case was based on the general characteristics of
methamphetamine addiction, and for section 232.2(6)(b) purposes, we do not
believe that is automatically enough to establish an imminent likelihood of
physical harm to the children.” In re J.S., 846 N.W.2d at 43-44. J.S. is
instructive but ultimately not on all fours with this case.
First, the child in this case was adjudicated in need of assistance pursuant
to Iowa Code section 232.2(6)(c)(2), not section 232.2(6)(b). Section
232.2(6)(c)(2) applies to a child “[w]ho has suffered or is imminently likely to
suffer harmful effects as a result of . . . [t]he failure of the child's parent . . . to
exercise a reasonable degree of care in supervising the child.”
Second, we are not faced with the propriety of the initial adjudication as
was the case in J.S., but of an order modifying a disposition. As noted, we need
only find “some harm” that would justify the adjudication. Iowa Code
§ 232.102(5)(a)(2). At the time of the adjudicatory order, the mother’s transitional
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status and domestic violence concerns justified the adjudication. While a
department caseworker conceded there was no imminent safety concern at the
time of the hearing on the motion to modify the disposition, she asserted the
mother had yet to resolve “[s]ubstance abuse, domestic violence, and mental
health . . . and criminal behaviors and criminal thinking.” Substance abuse is a
“harm which would justify the adjudication of the child as a child in need of
assistance.” See In re A.B., 815 N.W.2d 764, 776 (Iowa 2012) (stating father’s
substance abuse issue “continued to place himself and others in danger despite
his otherwise laudable participation in services”). Domestic violence also is a
harm that would justify adjudication of the child as a child in need of assistance.
See In re L.M., No. 10-1001, 2010 WL 3325407, at *3 (Iowa Ct. App. Aug. 25,
2010). The mother did not curtail contact with the father despite his history of
domestic violence, as reflected by her invitation to have him attend the child’s
birthday party. As for the mother’s mental health, her attendance at therapy
sessions was sporadic until the month of the hearing on the motion to modify
disposition. Finally, the mother understood but did not internalize the criminality
of marijuana use. We conclude the State established the mother could not
protect the child from “some harm which would justify the adjudication.”
In reaching this conclusion, we have not considered certain additional
assertions of harm propounded by the department. For example, the department
claimed the mother failed to inform the agency about a utility shut-off at her
home. The shut-off did not jeopardize the child’s health or safety; the mother
contacted the utility provider directly and addressed the shut-off without
departmental assistance. The department also cited the mother’s decision to
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place milk outside to keep it cold during the shut-off. Far from a reflection of poor
judgment, this act revealed creative thinking to resolve an immediate problem.
Finally, we are not persuaded the mother was dishonest with the department
about her drug usage or certain daycare issues. When asked, she disclosed her
marijuana use. Without prompting, she also informed the department of a late
pick-up of her child from a daycare center, which she said was a result of a
delayed bus schedule. Finally, she explained why the child was not always in
protective daycare as instructed, testifying she cared for the child herself during
periods of unemployment. These factors did not support modification of the
disposition.
2. “Res Judicata”
The mother contends the juvenile court’s basis for modifying the
dispositional order was barred by the doctrine of res judicata. We disagree.
Although a dispositional order is a final appealable order, the order is subject to
modification. See In re A.W., 464 N.W.2d 476, 477 (Iowa Ct. App. 1990). The
mother concedes as much by arguing modifications require proof of a material
and substantial change of circumstances. See In re R.F., 471 N.W.2d 821, 824
(Iowa 1991). While a showing of such a change is not statutorily mandated, this
judicial gloss envisions a different set of facts than the facts underlying the
adjudication and dispositional orders. Accordingly, the res judicata doctrine is
inapplicable.
Even if the doctrine were applicable, the facts are not identical. As
discussed, the mother used illegal drugs after the dispositional order was
entered.
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3. Best Interests
The mother asserts a modification of the dispositional order was not in the
child’s best interests. There is no question the mother had the ability to be a
model parent. But, after years of services, the mother engaged in acts she knew
to be illegal and knew would compromise her custodial rights to the child.
Notwithstanding her loving care at the outset and the deep bond she forged with
the child, we conclude modification of the dispositional order was in the child’s
best interests.
B. Termination Order
The mother contends the record lacks clear and convincing evidence to
support the grounds for termination cited by the juvenile court. We may affirm if
we find clear and convincing evidence to support either of the grounds cited by
the juvenile court. In re S.R., 600 N.W.2d 63, 64 (Iowa Ct. App. 1999). Our
discussion above leads us to conclude the State satisfied the elements of Iowa
Code section 232.116(1)(g), which requires a child-in-need-of-assistance
adjudication, proof of a prior termination, and “clear and convincing evidence that
the parent continues to lack the ability or willingness to respond to services which
would correct the situation.”
As for whether termination was in the child’s best interests, the child’s
safety is the paramount concern. P.L., 778 N.W.2d at 40. Given the mother’s
continued drug use and her unwillingness to internalize the lessons she learned
during outpatient treatment, we conclude the child’s safety was at risk and
termination was in the child’s best interests.
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We turn to certain exceptions to termination. See id. at 37-38. The
exception based on the bond between parent and child raises the closest
question. Iowa Code § 232.116(3)(c). All concerned characterized the child as
happy, healthy, and well-adjusted. The mother deserves much of the credit
because she raised the child for the first ten months of his life. But after years of
services, the mother sabotaged her own progress and risked the future safety of
her child. Under these circumstances, we conclude termination of her parental
rights was in the child’s best interests notwithstanding the bond.
The mother also asserts termination was unwarranted because relatives
expressed a willingness to care for the child. See Iowa Code § 232.116(3)(a).
For the reasons set forth above, we conclude the possibility of a relative
placement was not grounds for declining to terminate her parental rights.
We affirm the termination of the mother’s parental rights to this child.
II. Father
As noted at the outset, the father raises a challenge to the grounds for
termination cited by the juvenile court. In passing, he also asserts he was not
served with the child in need of assistance petition and “attended no hearings
during that case.”
We begin with the notice issue. Notice is jurisdictional and a judgment
entered without notice is void. In re S.P., 672 N.W.2d 842, 845-46 (Iowa 2003).
“The issue boils down to whether [the father’s] whereabouts were unknown and
whether a ‘reasonably diligent search’ was made to determine his whereabouts.”
Id. at 846.
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The child-in-need-of-assistance petition was filed in January 2013. The
petition identified the father by name and birthdate but listed no street address.
In time, a State investigator filed an affidavit of diligent search attesting he spoke
to the father and made arrangements to deliver the original notice and notice of
hearing to him. The father did not appear. The investigator followed up with
“multiple messages on the father’s phone.” After receiving no return phone call,
the investigator searched for additional information on national and local law
enforcement databases. Those sources revealed dated addresses.
There is no question the investigator made “numerous inquiries.” Id. at
848. But he did not make “the obvious inquiries a reasonable person would
make under the circumstances,” such as a request for information from the
child’s mother. Id.The State’s omission was fatal in In re S.P. and it might have been fatal
here,1 but for a juvenile court finding that the father appeared at a contested child
in need of assistance hearing. See In re J.F., 386 N.W.2d 149, 152 (Iowa Ct.
App. 1986) (noting father who did not receive notice of CINA action was initially
entitled to have dispositional order vacated but waived this right by voluntarily
appearing and acquiescing in the court’s jurisdiction). Notably, the adjudicatory
order containing this finding stated the father’s visitation would be at the
discretion of the department and would be professionally supervised. This order
1
We recognize the father agreed to accept delivery of the documents at a prearranged
time and location and failed to do so. However, this did not absolve the State of its
obligation to ensure proper service. See State v. Kaufman, 201 N.W.2d 722, 724 (Iowa
1972) (holding notice served on attorney who may have been representing defendant
was insufficient).
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would have been unnecessary had the father not appeared.2 In light of the
father’s appearance at the adjudicatory hearing, we conclude the State’s failure
to notify him formally does not require us to vacate the district court judgment
against him. We proceed to the merits.
We may affirm if we find clear and convincing evidence to support any of
the termination provisions cited by the juvenile court. S.R., 600 N.W.2d at 64.
On our de novo review, we find clear and convincing evidence to support
termination under Iowa Code section 232.116(1)(e) (requiring proof of several
elements including proof of the absence of significant and meaningful contact).
The father knew he had a child; he appeared at the hospital following the
child’s birth. Nonetheless, he declined to pursue the court-approved avenue of
supervised contact with the child until paternity was formally established shortly
before the filing of the termination petition. At the termination hearing he
testified, “Since [the child’s] been born, I only seen him a few times. I seen him
at birthday parties. I seen him a couple times at a couple of visits. Probably,
like, probably, like, two or three times.” His statement establishes the absence of
significant and meaningful contact with the child. Accordingly, we affirm the
termination of the father’s parental rights to the child under this provision.
AFFIRMED.
2
The record is less than clear on the extent of the father’s involvement at the
adjudicatory hearing. As late as six months after the hearing, a dispositional
modification order stated the father had no attorney and did not participate in the
proceedings precipitating that order.