In the Interest of I.S., N.S., and T.M., Minor Children, J.S., Father, T.M., Mother ( 2014 )

IN THE COURT OF APPEALS OF IOWA
No. 14-0078
Filed April 16, 2014
IN THE INTEREST OF I.S., N.S., and T.M.,
Minor Children,
J.S., Father,
Appellant,
T.M., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Cerro Gordo County, Annette L.
Boehlje, District Associate Judge.
A mother and father separately appeal the termination of their parental
rights to three children. AFFIRMED IN PART AND REVERSED IN PART ON
BOTH APPEALS.
Maury J. Noonan of Pappajohn, Shriver, Eide & Nielsen, P.C., Mason City,
for appellant-father.
Travis M. Armbrust of Brown, Kinsey, Funkhouser & Lander, P.L.C.,
Mason City, for appellant-mother.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant
Attorney General, Carlyle D. Dalen, County Attorney, and Nichole M. Benes,
Assistant County Attorney, for appellee.
Mark Young, Mason City, guardian ad litem for minor children.
Considered by Vogel, P.J., and Tabor and McDonald, JJ.
2
TABOR, J.
The juvenile court terminated the parental rights of Tasha and Joshua to
I.S. and T.M. under Iowa Code section 232.116(1)(f) (2013)1 and to N.S. under
section 232.116(1)(h).2 The court pointed to the children’s anxiety, anger, and
frustration and concluded only through cutting ties with their parents could they
stop worrying about being safe and start focusing on just being children. On
appeal, the parents argue the State failed to satisfy the statutory grounds for
termination. The parents also assert the State did not make reasonable efforts to
reunify the family. Finally, they contend termination was not in the best interests
of the children.
In our de novo review, we find the services provided this family by the
Department of Human Services (DHS) met the test for reasonable efforts. Even
after receiving services, the parents are not presently able to resume care of their
children. Clear and convincing proof supports termination of parental rights with
respect to I.S. and N.S., and termination is in the children’s best interests.
Accordingly, we affirm the order terminating parental rights to those two children.
1
The court may terminate the rights of a parent to a child if: (1) the child is four years of
age or older, (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 twelve of the last eighteen months, or for the last twelve
consecutive months and any trial period at home has been less than thirty days, and (4)
there is clear and convincing evidence that at the present time the child cannot be
returned to the custody of the child's parents as provided in section 232.102.
Iowa Code § 232.116(1)(f).
2
The court may terminate the rights of a parent to a child if: (1) the child is three years
old or younger, (2) the child has been adjudicated a CINA under section 232.96, (3) the
child has been out of the parent's custody for at least six of the last twelve months or the
last six consecutive months, and (4) “[t]here 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.” Iowa Code § 232.116(1)(h).
3
As for T.M., because he is not the biological or legal child of either Tasha or
Joshua, we find the juvenile court erred in including T.M. in the termination order.
Accordingly, we reverse the order as to that child.
I. Background Facts and Proceedings
I.S. (born in 2007), N.S. (born in 2010), and T.M. (born in 2009)3 came to
the attention of the Department of Human Services (DHS) in 2012 based on
reports the young children were left outside without supervision, as well as an
incident where Joshua threatened Tasha and her new paramour with a baseball
bat in the presence of T.M. Both Tasha and Joshua were in foster care
themselves as children because they were abused and exhibited troubling
behaviors. As adults they continue to struggle with mental health challenges.
On November 19, 2012, I.S., N.S., and T.M. were adjudicated as children
in need of assistance (CINA). At home with the parents, the children suffered
anxiety issues concerning their safety; they would fight and throw tantrums. On
November 26, 2012, the children were removed from the home due to concerns
about the mental health of the parents, possible domestic abuse, and the overall
safety of the children. After persistent coaching on better parenting practices
from the family safety, risk, and permanency (FSRP) provider, Tasha and
Joshua—who lived in separate homes—were able to move toward semi-
supervised and then unsupervised visitation with the children.
3
T.M. is the biological child of Tasha’s sister Tara. Tara voluntarily placed her son in the
care of his maternal aunt and uncle, Tasha and Joshua, when he was just two days old.
We will discuss T.M.’s status later in this opinion.
4
But in March of 2013, the DHS moved the family back to semi-supervised
visits because the workers believed the parents had exercised poor judgment.
For instance, the parents allowed Tasha’s paramour to participate in visits
without DHS approval, and Tasha spanked T.M. in the locker room at the YMCA
because he had been banging the lockers shut.
The State filed petitions to terminate parental rights on November 19,
2013. The juvenile court held a hearing on December 16 and 17, 2013. The
district court issued an order terminating the parental rights of Joshua and Tasha
as to their biological children, I.S. and N.S., on January 3, 2014. The order also
purported to terminate their rights as the “pseudo-mother” and “pseudo-father” of
T.M. The court found clear and convincing evidence the children could not be
returned home at the time of the hearing under Iowa Code section 232.116(1)(f)
and (h). Both Joshua and Tasha now appeal.
II. Standard of Review
The scope of review in termination cases is de novo. In re D.W., 791
N.W.2d 703, 706 (Iowa 2010). Clear and convincing evidence is needed to
establish the grounds for termination. In re J.E., 723 N.W.2d 793, 798 (Iowa
2006). Where there is clear and convincing evidence, there is no serious or
substantial doubt about the correctness of the conclusion drawn from the
evidence. In re D.D., 653 N.W.2d 359, 361 (Iowa 2002). The primary concern in
a termination proceeding is the best interests of the child. In re L.L., 459 N.W.2d
489, 493 (Iowa 1990). “We are not bound by the juvenile court’s findings of fact,
5
but we do give them weight, especially in assessing the credibility of witnesses.”
D.W., 791 N.W.2d at 706.
III. Analysis
A. Parental rights to T.M.
Both parents challenge the termination of their rights with respect to T.M.
We agree termination was improper and should be reversed. But we do so
because neither Tasha nor Joshua fits the definition of “parent” in the juvenile
justice chapter. “Parent” means “a biological or adoptive mother or father of a
child but does not include a mother or father whose parental rights have been
terminated.” Iowa Code § 232.2(39). “Termination of the parent-child
relationship” is defined as “the divestment by the court of the parent’s and child’s
privileges, duties, and powers with respect to each other.” Id. § 232.2(57).
T.M. is the biological child of Tara, Tasha’s sister. In its January 3, 2014,
order, the district court acknowledged “[n]o legal paperwork was ever filed or
prepared to transfer parental rights to Tasha and Joshua.” But the court
overlooked the lack of formalities, observing “the reality is that the family has
lived as though [T.M.] was adopted into it.” Living with a family “as though”
adopted into it, does not replace the procedures outlined in Iowa Code chapter
600. See In re Adoption of M.M.B., 376 N.W.2d 900, 902 (Iowa 1985) (“Adoption
is a creature of statute and was not known at common law.”). The care-taking
role assumed by Tasha and Joshua is not a parent-child relationship to which the
termination procedures apply. “Our courts do not recognize legal rights or
obligations between a child and a person who is not the legal parent of the
6
child . . . .” In re Marriage of Bethards, 526 N.W.2d 871, 875 (Iowa Ct. App.
1994) (Cady, J., dissenting). If no legal rights exist, they cannot be terminated.
Our reversal of the termination of the “parental” relationship between T.M.
and his aunt and uncle does not disrupt T.M.’s current status in any way.4 He
remains adjudicated CINA, in family foster care, and eligible for adoption.
B. Parental Rights to I.S. and N.S.
1. Statutory basis for terminating mother’s rights
Sections 232.116(1)(f) and (h) require proof the children cannot be
returned to the parents “at the present time” as provided in section 232.102. “At
the present time” means the time of the termination hearing. Section 232.102(9)
allows a child to be returned home only if evidence shows the child will not suffer
harm in the manner specified in section 232.2(6). The harms in section 232.2(6)
include a likelihood of abuse or neglect, a failure to exercise a reasonable degree
of care in supervision, or inadequate care due to mental capacity or condition.
The juvenile court found:
To return the children to their home at this time would
subject the children to the following adjudicatory harms: mental
health problems, continuing anger management problems,
parenting skills deficiencies, lack of appropriate boundaries, and
synthetic marijuana use by both parents within the last 3 months.
In a well-written brief by her attorney, Tasha challenges these findings on
appeal. She points out that her parenting abilities have “progressed at a more
4
On January 24, 2014, the juvenile court held a hearing on the State’s petition to
terminate the parental rights of T.M.’s biological mother, Tara, and his unknown father.
On February 4, 2014, the court terminated T.M.’s relationship with Tara and any
unknown father under Iowa Code section 232.116(1)(b). That order is not being
appealed here.
7
rapid pace than usual.” She claims the DHS has overblown some of the
perceived parenting deficiencies, for instance, faulting the parents for giving their
children candy and toy handcuffs during visitations. Finally, she argues the
record lacked clear and convincing evidence that she was abusing illegal
substances.
We acknowledge Tasha has made some progress during the case, but we
agree with the juvenile court that she continues to engage in the kind of poor
decision-making that makes reunification too great a risk for the children. At the
time of the termination hearing, Tasha was living with a paramour; she admitted
their relationship had been punctuated with domestic violence. At one point, a
break up in that relationship prompted Tasha to threaten suicide. Yet she did not
see the risk of violence in the home as impeding the return of her children.
Tasha’s failure to recognize the potential harm from exposure to such a volatile
situation is evidence the children cannot be returned to her custody. See In re
C.C. and S.N., 538 N.W.2d 664, 667 (Iowa Ct. App. 1995).
The juvenile court was also rightly concerned about Tasha waiting for
several months after the CINA adjudication to seek mental health treatment.
Tasha has been diagnosed with borderline personality disorder, post traumatic
stress disorder, and borderline intellectual functioning. When she did speak to a
therapist, she mischaracterized events and blamed the removal for many of the
children’s problems. On several occasions she would verbally attack DHS
employees for the family’s situation. Despite receiving counseling and other
8
services, Tasha continued to struggle with impulse control and reverted to
habitually angry responses.
Tasha has exercised poor judgment when interacting with the children.
She and Joshua advised the children not to report certain incidents that occurred
during visits. She also told the children they had “two sets of rules”—one with
their natural parents and one with the foster family. The juvenile court credited
testimony from the FSRP worker that Tasha had, on occasion, slurred her
speech, seeming to be under the influence of an intoxicant, during telephone
conversations with her children: “The kids didn’t know what to do because
Mommy couldn’t complete sentences.” Tasha also appeared to be lethargic and
unable to walk straight during an in-person visitation. Joshua told the worker he
suspected Tasha was using synthetic marijuana, as they had done so together
before the DHS opened its case. We defer to the district court’s fact finding on
this point.
The FSRP worker testified Tasha worked hard to “get a handle on her
anger” but the worker believed a threat continued to exist that Tasha would lash
out at the children. The guardian ad litem noted in his report “the parents have
acted in ways that were concerning for the children’s safety.” Our review of the
record compels us to reach the same conclusion as case workers, the guardian
ad litem (GAL), and the juvenile court. See In re D.W., 791 N.W.2d at 707
(noting “service providers and guardian ad litem were unable to recommend
reunification”). Given Tasha’s history of mental instability and continued poor
9
judgment, we agree she cannot presently offer a stable home for the children.
See In re K.F., 437 N.W.2d 559, 563 (Iowa 1989).
2. Statutory basis for terminating father’s rights
The father also challenges the juvenile court’s finding the children could
not be presently returned to his care. He argues at the time of the termination
trial on December 16, 2013, “he had done all that was requested of him by the
State.” Joshua emphasizes he “was employed, receiving mental health services,
and living in a safe and appropriate home for the children.”
We recognize Joshua has made great strides in his parenting abilities.
The GAL said, “Josh clearly loves his children and wants what is best for them.”
But neither the GAL nor the case workers felt comfortable recommending the
children be returned to his custody at the time of the termination hearing.
Like Tasha, Joshua has a history of mental health problems. He has been
diagnosed with Tourette syndrome, intermittent explosive disorder, and
borderline intellectual functioning. His IQ test results were 74, which equates to
the mental age of someone slightly under twelve. While a parent’s intellectual
impairment is not sufficient on its own to justify termination, it may be considered
if it affects the children’s well being. In re A.M., __ N.W.2d __, 2014 WL 685401(Iowa 2014) quoting In re D.W., 791 N.W.2d at 708. Joshua struggles with
complex problem solving and thinking things through. For example, he quit his
job with CDI, a commercial painting company in Forest City (a steady, well-paid
position close to his family) to go “flip” repossessed HUD (department of housing
and urban development) homes, despite advice from DHS workers that the new
10
venture would not live up to its promised return. Only after more than four
months without any income did Joshua realize his miscalculation. See In re P.L.,
778 N.W.2d 33, 41 (Iowa 2010) (emphasizing that the father's “poor decision
making makes him unable to provide a safe and nurturing home for his child”).
Joshua also struggles with anger, aggression, and poor judgment. The
children’s removal stemmed from Joshua’s threatening behavior toward Tasha
and her paramour. DHS workers testified he has yelled and acted aggressively
toward them in front of the children. Joshua also demonstrated his inability to
handle his frustration appropriately when he jumped out of a moving car when
fighting with Tasha on the way to a visitation with the children. The juvenile court
expressed concern the father did not seek anger management counseling until
June 2013, seven months after the children’s removal. The court also accepted
the testimony of the DHS worker who believed that Joshua was “under the
influence of something” at a visit in October 2013.
The FSRP worker testified Joshua needed constant support to parent his
children effectively and could not provide a safe environment on his own at the
time of the termination hearing. The juvenile court adopted that view, and we
agree the children could not be safely returned to the custody of their father.
Despite Joshua’s recent efforts to achieve stability, his parental rights to I.S. and
N.S. should be terminated.
3. Best interests of I.S. and N.S.
Both parents argue termination does not serve the children’s best
interests. They claim ending the legal relationship would be detrimental because
11
of their strong bond with the children. See Iowa Code § 232.116(3)(c) (allowing
court to forego termination if there is “clear and convincing evidence that the
termination would be detrimental to the child at the time due to the closeness of
the parent-child relationship”). We disagree.
The juvenile court found the parent-child relationships to be “strained.”
I.S. suffers from extreme anxiety that is often exacerbated by seeing Tasha and
Joshua. Reports from his teachers indicate his behavior worsens after the visits.
His anxiety even causes the child to soil himself during and after the visits with
his parents. I.S. has said his parents “hit me,” “abandon me,” and “yell at me.”
He often asks the foster family to keep him safe.
Tasha and Joshua call the children regularly at their foster home, but the
children are not eager to talk with them. The foster parents often have to
convince the children to come to the phone. We share the juvenile court’s
concerns about the parents’ mental health and stability. As noted, the case
workers believed the parents both fairly recently interacted with their children
while under the influence.
“Section 232.116(2) requires us to ‘give primary consideration to the
child's safety, to the best placement for furthering the long-term nurturing and
growth of the child, and to the physical, mental, and emotional condition and
needs of the child.’” P.L., 778 N.W.2d at 40. The children’s GAL stated it best:
“Based on the length of time the children have been out of parental care, and the
high needs of the children for discipline, structure, and permanency, I would
respectfully ask the court to grant the Petition for Termination.”
12
The children have been in the same foster care placement for the last
fifteen months. The children have bonded with the foster parents. The foster
parents offer the children a safe and loving home, provide for their needs, and
wish to adopt them. See Iowa Code § 232.116(2)(b)(1) (in determining best
interests, the court may consider a child’s integration into the foster family “to the
extent that the child's familial identity is with the foster family, and whether the
foster family is able and willing to permanently integrate the child into the foster
family”). The children deserve and need the stability and permanency they offer.
4. Reasonable efforts
Both parents mention the “reasonable efforts” requirement in their
petitions on appeal. The mother specifically argues the DHS failed to provide her
with Parent-Child Interactive Therapy after she requested that service. The
father contends he should have been allowed overnight visits and a trial home
placement with the children.
The juvenile code requires the DHS to make “every reasonable effort to
return the child to child's home as quickly as possible consistent with the best
interests of the child.” Iowa Code § 232.102(7); In re C.B., 611 N.W.2d 489, 493
(Iowa 2000). What constitutes reasonable services varies depending on the
requirements of the individual case. In re C.H., 652 N.W.2d 144, 147 (Iowa
2002). When a parent fails to identify a deficiency in services or to ask for
additional services, he or she may be precluded from later challenging the
adequacy of the services. Id. at 147 n. 4.
13
When we view the record as a whole, we find the services offered through
the DHS satisfied the requirement for reasonable efforts under the circumstances
of this case.
Since the CINA proceedings in November 2012, the DHS has offered this
family the following programs: FSRP services, behavior health intervention
services, individual therapy, anger management guidance, drug testing,
psychological testing, medication management, community services, family
foster care, visitation safety planning, child protective service assessment, family
team meetings, transportation assistance, parent partners, substance abuse
assessment and treatment, and housing assistance. Both Tasha and Joshua
have benefited from these services throughout the course of these proceedings.
The parents did request more visitations. But the DHS denied the request
because of the parents’ inability to follow the rules currently set out for
visitation—specifically: showing up late, returning late, and allowing unsafe
activity to occur. As for Tasha’s request for specific interactive therapy, we
cannot find such a request for additional services in the record. In fact, in
October 2013, Tasha threatened to walk away from services all together.
For all of these reasons, we conclude the State proved by clear and
convincing evidence that the parental rights of Tasha and Joshua should be
terminated as to their natural children, I.S. and N.S. The record shows
termination is in the children’s best interests. We reverse the termination order
as to T.M. for the reasons previously stated.
AFFIRMED IN PART AND REVERSED IN PART ON BOTH APPEALS.