In the Interest of M.B. and N.B., Minor Children ( 2020 )

IN THE COURT OF APPEALS OF IOWA
No. 20-0422
Filed June 3, 2020
IN THE INTEREST OF M.B. and N.B.,
Minor Children,
STATE OF IOWA,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County, Scott Strait,
District Associate Judge.
The State appeals the juvenile court’s denial of the petition to terminate the
parental rights of the mother and father as to these two children. AFFIRMED.
Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant
Attorney General, for appellant State.
Roberta J. Megel of State Public Defender’s Office, Council Bluffs, for
appellee father.
Annie M. Rohling, Council Bluffs, for appellee mother.
Daniel J. McGinn of McGinn, Springer & Noethe, PLC, Council Bluffs,
guardian ad litem for minor children.
Considered by Doyle, P.J., Mullins, J., and Potterfield, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2020).
2
POTTERFIELD, Senior Judge.
The State appeals1 the juvenile court’s denial of the petition to terminate the
parental rights of the mother and father to N.B., born in 2016, and M.B., born in
2017.2 The State challenges the juvenile court’s determination that DHS failed to
make reasonable efforts to reunify these children with the mother and father and
that termination is not in the children’s best interests.
I. Background Facts and Proceedings.
The Iowa Department of Human Services (DHS) became involved with this
family in June 2018, after the mother’s oldest child, nine-year-old K.B., called 911
and reported the father3 was assaulting the mother. It was alleged the father
strangled the mother and that, during the altercation, the mother hit a wall with
enough force that her head broke through it. All five of the mother’s children were
present at the time. The father was arrested for domestic abuse assault by
strangulation. He later pled guilty to one count of child endangerment, and all other
charges against him related to the incident were dismissed.
When DHS came to the home to make contact with the family a few days
later, the worker learned the home had at least sixteen people living in it. DHS
expressed concerns about the cleanliness of the home and whether the children
1 The guardian ad litem (GAL) also filed a notice of appeal, but our supreme court
sua sponte dismissed the appeal after the GAL failed to timely file a petition on
appeal. See Iowa R. App. P. 6.201(1)(b), (3).
2 The mother has five children. The oldest three children share a father, and the
two youngest, M.B. and N.B., share a different father. The mother’s three oldest
children were also at issue in the same termination proceedings, and the mother’s
and their father’s rights were terminated. Neither the mother nor the father of the
three oldest children have appealed that ruling.
3 Any reference to “the father” in this opinion refers to the father of M.B. and N.B.
3
were receiving appropriate supervision. The mother was not cooperative
regarding a possible safety plan and did not have anywhere to live with the five
children. As a result, the children were removed from the parents’ care, with the
three oldest children being placed in relative care with their maternal aunt and
uncle and the two youngest—M.B. and N.B.—placed in foster care.
At the outset, DHS’s areas of concern were the father’s use of illegal
substances, the mother’s low intellectual functioning and any resulting issues with
parenting her five children, and the domestic violence in the parents’ relationship
and its effect on the children. The mother was ordered to complete a domestic
violence class for victims, and the father was ordered to complete a domestic
violence class for perpetrators. Additionally, the father was ordered to complete a
substance-abuse evaluation and follow through with recommendations and the
mother was ordered to complete IQ testing and a parenting assessment.
The mother and father both completed their respective domestic violence
courses, and the mother completed a parenting class. The parents continued to
have issues to address, but, by the end of February 2019, DHS felt the parents
were doing well enough to warrant semi-supervised visits with M.B. and N.B.
These visits continued until late June, when the previous social worker returned
from leave and ended them.
About one month later, the State petitioned to terminate the parental rights
of the mother and the father pursuant to Iowa Code section 232.116(1)(e) and (h)
(2019).
Following a two-day termination hearing in December 2019, the juvenile
court found the State failed to prove the grounds for termination pursuant to
4
paragraph (e),4 noting that the mother was caring for N.B. and M.B. during
unsupervised weekend overnight visits as recently as June 2019. Additionally,
both children were bonded with their parents, and the parents maintained a place
of importance in both children’s lives. See Iowa Code § 232.116(1)(e)(3). As for
paragraph (h),5 the court concluded that the children could not be returned to the
parents’ care at the time of the termination hearing. See id. § 232.116(1)(h)(4).
However, the court found “that both children are bonded with their parents and that
4 Iowa Code section 232.116(1)(e) allows the court to terminate parental rights
when:
(1) The child has been adjudicated a child in need of
assistance pursuant to section 232.96.
(2) The child has been removed from the physical custody of
the child’s parents for a period of at least six consecutive months.
(3) There is clear and convincing evidence that the parents
have not maintained significant and meaningful contact with the child
during the previous six consecutive months and have made no
reasonable efforts to resume care of the child despite being given
the opportunity to do so. For the purposes of this subparagraph,
“significant and meaningful contact” includes but is not limited to the
affirmative assumption by the parents of the duties encompassed by
the role of being a parent. This affirmative duty, in addition to
financial obligations, requires continued interest in the child, a
genuine effort to complete the responsibilities prescribed in the case
permanency plan, a genuine effort to maintain communication with
the child, and requires that the parents establish and maintain a
place of importance in the child’s life.
5 Iowa Code section 232.116(1)(h) allows the court to terminate parental rights
when:
(1) The child is three years of age or younger.
(2) The child has been adjudicated a child in need of
assistance pursuant to section 232.96.
(3) The child has been removed from the physical custody of
the child’s parents for at least six months of the last twelve months,
or for the last six consecutive months and any trial period at home
has been less than thirty days.
(4) There is clear and convincing evidence that the child
cannot be returned to the custody of the child’s parents as provided
in section 232.102 at the present time.
5
given the progress of the parents with regard to these children, additional time
should be afforded to work towards reunification.” In reaching this decision, the
court found that
reasonable efforts have not been afforded [the father] or [the mother]
as to [N.B.] or [M.B.] The mother progressed to unsupervised,
weekend overnight care of [the children] and yet that contact was
cancelled due to the failure of [the mother] to submit to random drug
screens when [DHS] concedes that there was no evidence that [the
mother] ever had a substance abuse problem. The court finds that
the use of such a pretext for denial of contact wholly inappropriate.
The untimeliness of [the mother’s] parenting assessment and the
follow-through with those recommendations are also concerning to
this court. [The father] has also made substantial progress, including
the completion of the [domestic violence] program. Domestic
violence was the basis of the removal and the adjudication in this
matter. Both parents have completed the necessary services to
address those issues, and there has been no evidence of
subsequent domestic violence or anger issues. [DHS’s] position that
[the father’s] failure to complete a parenting assessment,
psychological assessment or have IQ testing when such services
were not ordered at disposition, review, or permanency hearings is
also concerning. If it is the position of the []DHS that those services
were critical to successful reunification, such services should have
been a part of their dispositional case plan as required by Iowa Code
sections 232.97 and 232.99 and should have been ordered by the
court at disposition and subsequent hearings. Contrary to the
position of the DHS, a review of the [child-in-need-of-assistance] file
indicates that [the father] was never ordered to have a psychological
evaluation.
The court denied the State’s petition to terminate the mother’s and father’s rights
as to N.B. and M.B.6
The State appeals.
6 The mother’s oldest three children, to whom her rights were terminated, remained
in the care of their maternal aunt and uncle. According to testimony at the
termination hearings, those relatives intended to adopt the children and the mother
was supportive of this, as she believed she would be allowed to be part of the
children’s lives going forward.
6
II. Discussion.
The court denied the State’s petition to terminate, finding the State failed to
prove the elements of paragraphs (e) or (h). As to paragraph (e), the court found
the parents had maintained a place of importance in the children’s lives. See id.
§ 232.116(1)(e)(3). The court generally found the State proved the grounds for
paragraph (h) but concluded the State had failed at its mandate to make
reasonable efforts to reunify the family. See In re C.B., 611 N.W.2d 489, 493 (Iowa
2000) (“[T]he reasonable efforts requirement is not viewed as a strict substantive
requirement of termination. Instead, the scope of the efforts by the DHS to reunify
parent and child after removal impacts the burden of proving those elements of
termination which require reunification efforts. The State must show reasonable
efforts as a part of its ultimate proof the child cannot be safely returned to the care
of a parent.” (citation omitted)).
On appeal, the State challenges only the court’s reasonable-efforts and
best-interests findings. We understand this to be an argument that we should find
termination of the parents’ rights appropriate under section 232.116(1)(h).
Upon our de novo review,7 we agree with the juvenile court that the State
failed to make reasonable efforts to reunify these children with the mother and
father. The mother was parenting the children semi-supervised with up to three
overnight visits per week for approximately four months—from the end of February
until late June 2019. 8 The parents still had concerns to address during that time,
7C.B., 611 N.W.2d at 492 (“We review termination proceedings de novo.”).
8 At the termination hearing, the social worker testified the father never had
unsupervised or semi-supervised visits, but we believe this is in error. The parents
were living separately at the time—as part of the terms of the father’s probation—
7
but the reports from the service provider generally show the parents were meeting
the children’s needs and keeping them safe during the visits.
Then, in late June 2019, the family’s social worker returned from leave,
immediately ending the semi-supervised visits and telling the parents DHS would
be filing for termination.9 At the termination hearing, the social worker testified the
semi-supervised visits were ended because the mother was failing to follow the
safety plan, which included submitting to random drug screens, participating in
therapy with the three oldest children, and visiting the three oldest children at the
maternal aunt and uncle’s home.10
Most of the service provider’s reports during this time period indicate the
mother was not asked to test for drugs. One report indicates the mother was asked
to test and failed to show up. But, like the juvenile court, we question whether DHS
actually ended the semi-supervised visits for this reason, as at the termination
hearing, the social worker admitted the mother was “not . . . involved for substance
and the visits usually took place at the mother’s home, but reports from the service
provider during this four-month period show the father and mother were generally
parenting together during these semi-supervised visits. The reports also show
instances, and the father testified as to at least one time, when the father parented
the children alone while the mother worked or attended an appointment.
9 We acknowledge this took place nearly contemporaneously with the father’s
probation being revoked. However, the social worker did not rely on the probation
revocation as the reason, which makes sense, since the revocation was based in
part on the father’s testing positive for marijuana—a test result DHS had been
aware of for about a month when the semi-supervised visits were ended.
10 According to the report filed by the service provider and offered into evidence by
the State at the termination hearing, DHS ended semi-supervised visits with N.B.
and M.B. and decided to petition for termination because the mother needed to
submit the results of her IQ test to DHS, she needed to let her therapist know DHS
needed therapy progress notes, the mother needed to submit to random drug
tests, and both parents needed to participate in therapy with the three oldest
children. The social worker’s testimony left out the first two reasons and provided
a new, additional rationale.
8
abuse, so [DHS] did not push” her to get a substance-abuse evaluation and that,
to her knowledge, the mother had never had any issues with drugs or alcohol. And
while DHS wanted the mother and father to attend therapy with the three oldest
children to help understand and process those children’s feelings regarding the
violence they witnessed in the home, the service provider’s reports indicate family
therapy was “not an option right now due to [the oldest three children’s] therapist
feeling that it would not be beneficial to the children at this time.” Finally, while we
understand DHS’s requirement that the mother visit the oldest three children as it
pertains to the oldest three children, we question how it relates to her ability to
parent the youngest two. Without a link between the failure to follow the case plan
and possible danger to the children at issue, it appears DHS’s decision to end the
semi-supervised visits was punitive in nature. See In re M.S., 889 N.W.2d 675,
681 (Iowa Ct. App. 2016) (noting failure to follow DHS’s case plan alone is not
sufficient reason for termination of a parent’s rights; “Indeed, the termination of
parental rights because of a parent’s failure to follow the case plan, without a
showing of harm, would run afoul of due process.”).
Additionally, it was recognized early in the case that the mother has
cognitive difficulties. As a result, she was ordered to complete IQ testing. The
mother completed the testing in early January 2019 but then struggled to get the
results delivered to DHS. It seems DHS did little to help her with this issue, in spite
of the fact that the testing was ordered because of questions regarding the
mother’s ability to follow such instructions, complete necessary paperwork, etc.
DHS needed the results from the IQ test in order for a parenting assessment to be
completed. The parenting assessment, which identifies strengths and
9
weaknesses of the mother and provides recommendations for going forward, was
not completed until mid-September 2019. And the social worker testified her
communication with the mother dropped off in October through the termination
hearing.
The parents have addressed many of DHS’s concerns. The family has a
safe, two-bedroom home, which is appropriate for the parents and two youngest
children. The father is employed, working two jobs and more than full-time hours,
while the mother is receiving social security disability. Both parents completed the
domestic violence classes they were ordered to complete. The social worker
questioned whether the parents have taken the lessons from their respective
courses to heart, but she admitted there has been no evidence of domestic
violence in the home since DHS became involved in June 2018. Reports from the
three oldest children’s therapist suggest that the incident that caused DHS to get
involved was not the only incident of domestic violence in this family—as the
parents maintain it is—but there are still no allegations that domestic violence has
been an issue since DHS became involved.
At the termination hearing, DHS faulted the father’s failure to complete IQ
testing or his own parenting assessment. As the juvenile court did, we note this
was ordered only one time—at the beginning of the case—and never brought up
again until the termination proceedings. Additionally, in its petition on appeal, the
State focuses on the father’s failure to complete substance-abuse treatment, but
the social worker testified at the termination hearing that she did not then have any
concerns regarding the father’s use of alcohol or drugs. As for concerns regarding
10
the parents’ mental health, additional time and services will give the parents time
to continue addressing this issue.
Because we agree with the juvenile court that the State failed to make
reasonable efforts to reunify N.B and M.B. with the mother and father, we affirm
the denial of the State’s petition to terminate the parents’ rights. As the State failed
to prove the statutory grounds for termination, we do not consider whether
termination is in the children’s best interests. See, e.g., In re D.W., 791 N.W.2d
703, 706 (Iowa 2010) (providing that termination of parental rights is a three-step
process, and if a statutory ground for termination is established under section
232.116(1), then we consider whether termination is in the children’s best interests
under section 232.116(2)).
AFFIRMED.