In the Interest of L.T., A.T., and D.T., Minor Children

IN THE SUPREME COURT OF IOWA
No. 18–1375
Filed March 1, 2019
IN THE INTEREST OF L.T., A.T., AND D.T.,
Minor Children,
K.T., Mother,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Linn County, Susan
Flaherty, Associate Juvenile Judge.
K.T. seeks further review of an order terminating parental rights.
DECISION OF COURT OF APPEALS VACATED; JUVENILE COURT
ORDER REVERSED AND REMANDED.
Ellen R. Ramsey-Kacena, Cedar Rapids, for appellant.
Thomas J. Miller, Attorney General, John McCormally, (until
withdrawal) and Anagha Dixit, Assistant Attorneys General, Jerry Vander
Sanden, County Attorney, and Kelly Kaufman, Assistant County Attorney,
for appellee State.
Kimberly A. Opatz of Linn County Advocate, Inc., Cedar Rapids,
guardian ad litem for minor children.
2
APPEL, Justice.
In this case, we consider a mother’s appeal from the juvenile court’s
final order terminating her parental rights to L.T., A.T., and D.T. entered
twenty months after the evidentiary hearing on the issue. Approximately
six months after the evidentiary hearing, the juvenile court granted the
State’s motion to reopen the record and present additional evidence in
support of its petition to terminate parental rights. After receipt of the new
evidence, the juvenile court orally stated its intent to terminate parental
rights but did not enter a written ruling at that time.
Shortly after the juvenile court’s oral announcement, reasonable
efforts toward reunification ceased. A few months later, the mother
requested, at a hearing and by motion, reasonable efforts toward
reunification pending the juvenile court’s final order.
When more than nineteen months passed from the original hearing
without the juvenile court entering a written ruling, the mother moved to
reopen the evidence. The mother sought to show that she was sober, was
involved in an outpatient program to maintain sobriety, and had obtained
stable housing and employment.
Almost a month after the mother’s motion to reopen the evidence,
the juvenile court entered a written order terminating the mother’s
parental rights. On the same day, the court entered another order denying
the mother’s motions.
The mother appeals. She challenges the termination order as
unlawful. She asserts that the juvenile court abused its discretion by
declining to allow her the opportunity to present additional evidence after
the passage of nineteen months from the initial termination hearing. The
mother also asserts that she was entitled to reasonable efforts toward
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reunification with her children until the entry of a final written order of
termination.
We transferred the case to the court of appeals. The court of appeals
expressed displeasure over the delay in the filing of a timely order but
nonetheless affirmed the ruling of the juvenile court. We granted further
review. We now vacate the decision of the court of appeals, reverse the
order of the juvenile court, and remand the case to the juvenile court for
further proceedings.
I. Background Facts and Proceedings.
There are three children that are the subject of this case—L.T., A.T.,
and D.T. D.T., the youngest child, was born in May 2015.
At birth, D.T. tested positive for amphetamines. The mother was
found responsible for child abuse arising from this incident.
In June 2015, the Iowa Department of Human Services (DHS)
received results of a hair test from the mother. She tested positive for
amphetamines. At a hearing on June 23, the mother stipulated that the
children were children in need of assistance. Based on the stipulation, the
court adjudicated the three children as children in need of assistance.
During a dispositional hearing the next month, the parties stipulated that
the children should remain in their parents’ custody with DHS
supervision. The court ordered a permanency plan be submitted that
would state that the permanency goal is to maintain the children in their
parents’ custody.
Use of methamphetamines by the parents in August and September
of that year led to the children’s emergency removal from the home. The
juvenile court placed custody of the children with DHS for purposes of
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placement in foster care. 1 The court also ordered a permanency plan
stating that the permanency goal is reunification with the father.
In January and May of 2016, the juvenile court entered periodic
mandatory review orders. In these orders the court stated that “the
permanency goal at this time is family reunification.” The order also found
that DHS had made reasonable efforts to achieve permanency and recited
a litany of services that had been provided, including, but not limited to,
parental instruction and counseling; substance abuse help; mental health
treatment; medication management; housing referrals; and family safety,
risk, and permanency services. In the May order, the court noted that it
was informed the State would file a petition to terminate parental rights
and directed the State to do the same.
In June, the State petitioned for termination of the parents’ parental
rights. The petition relied on four different statutory grounds for
termination 2 and an affidavit from a DHS social worker.
A couple months later, in September, the court entered another
permanency review order. This order stated that “the permanency goal at
this time is reunification with a concurrent goal of termination of parental
rights and adoption.” The court again found that DHS was making
reasonable efforts to achieve permanency and noted that a hearing was
scheduled on the State’s petition to terminate parental rights.
The juvenile court held a hearing on the State’s petition to terminate
parental rights in November. At the termination hearing, the mother
admitted that she used methamphetamine the week before trial and
1Thechildren have remained with the same foster parents since their removal in
September 2015, a period of about three-and-a-half years.
2The State cited Iowa Code section 232.116(1)(a), (g), (h), (l) (2016). All statutory
citations herein are to the 2016 Code unless otherwise stated.
5
acknowledged that she “absolutely” needed residential treatment. The
mother testified she recognized the need “to be away” in a “structured
environment” to maintain her sobriety, something that she could not do
by herself.
In January 2017, the juvenile court held a permanency review
hearing. At the hearing, the juvenile court learned the mother had been
in a residential treatment program, had left the program, but hoped to get
back into a residential program. Afterward, the court entered a
permanency review order instructing that prior orders should continue
and noting that its ruling on the petition to terminate parental rights
remained pending. In addition, the court again found DHS was making
reasonable efforts to achieve permanency and recited a list of services
provided to the parents and children.
In a permanency review order signed on May 18, 2017, the juvenile
court noted that the parents still struggled with drug abuse and that they
did not have stable housing but were living with a relative. The juvenile
court noted that a further hearing on the petition for termination of
parental rights was scheduled for the following week. The court again
directed that prior orders should continue and, noting the list of services
provided to the parents and children, found that DHS had made
reasonable efforts to achieve permanency.
On May 23, the juvenile court reopened the record of the termination
hearing at the State’s request. The State offered the most recent progress
reports and the guardian ad litem’s report. The mother also testified,
asserting that she had been approved for subsidized housing, was
unemployed but started work cleaning apartments, and was participating
in mental health treatments. The mother admitted, however, that she
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relapsed in February and April and did not appear for a drug screen in
May.
At the close of the May 23 hearing, the juvenile court declared the
termination matter resubmitted. The juvenile court told the parties, “I
regret that my schedule doesn’t really allow me any time during the course
of a workday to write rulings.” The juvenile court stated, however, “I want
to relay to you that I’m going to grant the State’s petition for termination
of parental rights.” The juvenile court recognized the parental love for the
children, but declared,
The problem is, neither you [n]or [the father] have really been
able to gain control of your addiction issues, and your
substance abuse issues, and, that, combined with mental
health issues is the primary reason that your children cannot
be safely returned to your care. . . . The children have waited
long enough that it’s in their best interest to have
permanency. So I will grant the State’s petition and order that
they be made available for adoption. . . . [T]heir needs have to
be considered separately from yours and [the father’s], and
their needs require permanency, safety and stability, and I
can’t say that that is going to happen by return of custody to
you or to their father now or anytime in the recently near
future without them continuing to be at risk of harm and
requiring adjudication.
Still, time passed without the entry of a written order. In a
permanency review order dated September 21, 2017, the juvenile court
stated, “The Court has provided verbal order granting the State’s Petition
for Termination of Parental Rights and placing custody and guardianship
with the Department of Human Services. Written order remains pending.”
The court again directed that prior orders continue and noted that DHS
had made reasonable efforts to achieve permanency. This time, the court
recited only foster family care and supervision and DHS services.
Shortly before and after the September order, the mother requested
services from DHS. On September 17, at a permanency hearing, the
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mother asked that “reasonable efforts continue until there is a termination
order.” The juvenile court did not directly respond but stated it would do
its best to get out a written order. On October 2, the mother again
requested reasonable efforts by motion. She asserted that “[t]he State is
required to provide reasonable efforts toward reunification until
termination is final” and noted that no services had been provided since a
final visit with the children in May 2017. She requested visits and phone
calls with the children, a family team meeting, drug testing, and assistance
in furnishing her new housing.
Another nine months later, on July 1, 2018, the mother asked that
the record be reopened to allow her to present additional evidence. The
mother sought an opportunity to show that she was sober through drug
testing and that she has been involved in substance abuse treatment to
maintain her sobriety. She also sought to introduce evidence regarding
stable employment and stable housing.
On July 27, the juvenile court entered its ruling on the termination
petition. This order came approximately twenty months after the
November 2016 termination hearing and twenty-five months after the
State petitioned for termination of parental rights. In its termination order,
the juvenile court narrated about the long history of the mother’s
substance abuse and lack of stability. The court noted that the mother
had been involved with multiple inpatient and outpatient substance abuse
treatment programs but continued to use drugs and alcohol. The court
stated that the mother’s substance abuse issues impaired her “ability to
maintain employment [and] housing, her physical and emotional health,
her ability to maintain a healthy relationship with her husband, and
certainly her ability to provide a safe, stable home for her children.”
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The juvenile court concluded that, given those facts, the children
could not be safely returned to their mother’s care now or in the near
future. The court noted that the children had been in foster family care
for a majority of their lives and that adoptive placement would provide the
level of permanency that is in the best interest of the very young children.
As such, the juvenile court ordered that the mother’s parental rights to
L.T., A.T., and D.T. were terminated. On the same day, upon entry of the
termination order, the juvenile court denied the mother’s motions to
reopen the record and for additional reasonable efforts.
II. Standard of Review.
Our review in proceedings to terminate parental rights is generally
de novo. In re A.S., 906 N.W.2d 467, 472 (Iowa 2018). We review the
denial of motions to reopen the record for an abuse of discretion. See In
re J.R.H., 358 N.W.2d 311, 318 (Iowa 1984). In order to show an abuse of
discretion, a party must show the juvenile court’s action was unreasonable
under the attendant circumstances. In re J.L.L., 414 N.W.2d 133, 135
(Iowa 1987).
III. Discussion.
A. Introduction. The three issues in this case—whether the
juvenile court erred in terminating parental rights on July 27, 2018,
whether the juvenile court erred in failing to reopen the record at the
mother’s request on July 1, 2018, and whether the mother was deprived
of reasonable efforts services—are interrelated. The mother does not
dispute that the juvenile court’s order entered on July 27, 2018, fairly
reflected the situation as of November 2016. The mother essentially
argues that the inordinate delay of twenty months between the November
2016 hearing and the July 2018 written order makes the order stale and,
in light of the mother’s desire to introduce new and timely evidence,
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potentially unreliable. The mother further argues that reversal of the July
2018 termination order is required because the State failed to provide
reunification services after the juvenile court’s oral indication of an
intention to terminate parental rights.
B. Failure to Reopen Record. When a juvenile court diligently
enters a termination order after a hearing, there is generally no basis to
complain about a discretionary refusal of the juvenile court to reopen the
record, particularly when the evidence was available to the parties at the
time of the hearing. Cf. In re J.J.S., 628 N.W.2d 25, 30–31 (Iowa Ct. App.
2001) (holding that the juvenile court erred in reopening case for new
evidence subsequent to the dismissal of a petition for termination of
parental rights). See generally In re J.E., 723 N.W.2d 793, 801–02 (Iowa
2006) (Cady, J., concurring specially) (emphasizing the importance under
federal and state law for prompt action in the best interests of the child);
In re T.R., 705 N.W.2d 6, 12 (Iowa 2005) (“[D]elays in termination of
parental rights cases are ‘antagonistic’ to the child’s best interest.”). But
here, there was an inordinate delay in entering the termination order.
Further, the juvenile court permitted the State to reopen the record
approximately six months after the original hearing and then denied a
similar motion made by the mother more than one year later. The
differential treatment of the parties on their motions to reopen the record
makes little sense.
More importantly, when almost twenty months have passed from
the original hearing, the mother’s situation may well have materially
changed. The mother asked to present evidence that directly went to the
concerns of the juvenile court, namely, evidence regarding sobriety and a
program to maintain sobriety and evidence regarding stable housing and
employment. Given the long delay between the original hearing and the
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mother’s motion to reopen the record, the fact that no final order had been
entered, the germaneness of the matters that the mother sought to
introduce, and the juvenile court’s willingness to grant a similar motion to
the State, we conclude that the juvenile court abused its discretion by not
allowing the mother to present additional evidence before it entered its
ruling on termination. See In re T.W.W., 449 N.W.2d 103, 104–05 (Iowa
Ct. App. 1989) (ordering a limited remand of termination order based on
trial court’s erroneous refusal to reopen record to consider new evidence
concerning mother’s potential resolution of issues previously hampering
ability to adequately parent her children). Cf. In re J.R.H., 358 N.W.2d at
318 (holding that trial court did not abuse discretion in reopening evidence
because “the best interests of the children dictate that the rules of
procedure be liberally applied in order that all probative evidence might be
admitted”).
Because the juvenile court erred in failing to allow the mother to
present additional contemporary evidence, we reverse the juvenile court’s
July 27, 2018 termination order and remand the case to the juvenile court
with instructions to grant the mother’s motion to reopen the record. Upon
receipt of the evidence, the juvenile court shall expedite consideration of
the matter and promptly issue an order on termination.
C. Reasonable Efforts. The mother asserts that after the juvenile
court orally indicated in May of 2017 that it would terminate the mother’s
parental rights, DHS made no further efforts towards family reunification.
She claims that reasonable efforts toward reunification should be provided
until the juvenile court enters a written order of termination. The State
responds that providing such services would be pointless in light of the
juvenile court’s clear indication that it would be terminating the mother’s
parental rights.
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“[T]he reasonable efforts requirement is not viewed as a strict
substantive requirement of termination.” In re C.B., 611 N.W.2d 489, 493
(Iowa 2000) (en banc). Still, where the elements of termination require
reasonable efforts by DHS, the scope of DHS’s efforts after removal impacts
the burden of proving those elements. See id. Thus, “[t]he State must
show reasonable efforts as a part of its ultimate proof the child cannot be
safely returned to the care of a parent.” In re L.M., 904 N.W.2d 835, 839
(Iowa 2017) (quoting In re C.B., 611 N.W.2d at 493).
In this case, the district court found that the State established
grounds for termination under three separate provisions—Iowa Code
section 232.116(1)(f)–(h) (2016). All three provisions invoke a requirement
of reasonable efforts by DHS. See id. § 232.116(1)(f), (h) (requiring the
court to find that the child cannot be returned to the custody of the child’s
parents as provided in section 232.102); id. § 232.116(1)(g) (requiring the
court to find “that the parent continues to lack the ability or willingness to
respond to services which would correct the situation” and “that an
additional period of rehabilitation would not correct the situation”); see
also In re L.M., 904 N.W.2d at 839–40 (explaining, upon review of
termination proceeding under section 232.116(1)(h), that DHS must make
reasonable efforts but the challenge to those efforts was untimely); In re
L.H., 480 N.W.2d 43, 46 (Iowa 1992) (explaining that a statutorily
mandated finding that “ ‘an additional period of rehabilitation would not
correct the situation’ requires a prior effort to formulate and implement a
rehabilitative permanency plan under Iowa Code section 232.102(6)”
(quoting Iowa Code § 232.116(1)(f) (Supp. 1989))). Therefore, in this case,
the State was required to show reasonable efforts as a part of its ultimate
proof. See In re L.M., 904 N.W.2d at 839; In re C.B., 611 N.W.2d at 493.
12
Section 232.102(7) (2016) provides that DHS is to provide “every
reasonable effort to return the child to the child’s home as quickly as
possible consistent with the best interests of the child.” Iowa Code
§ 232.102(7). Further, under Iowa Code section 232.102(10)(a),
“reasonable efforts” means the efforts made to preserve and
unify a family prior to the out-of-home placement of a child in
foster care or to eliminate the need for removal of the child or
make it possible for the child to safely return to the family’s
home. . . . If returning the child to the family’s home is not
appropriate or not possible, reasonable efforts shall include
the efforts made in a timely manner to finalize a permanency
plan for the child. A child’s health and safety shall be the
paramount concern in making reasonable efforts.
Id. § 232.102(10)(a).
We think the reasonable efforts obligation runs until the juvenile
court has entered a final written order of termination. 3 The juvenile court
is authorized to terminate parental rights, id. § 232.117(3), but the same
statutory section provides that “[a]fter the hearing is concluded the court
shall make and file written findings,” id. § 232.117(1). Moreover, the final
termination order in a termination proceeding is what determines whether
parental rights are terminated, and “[a] ruling is not final when the trial
court intends to do something further to signify its final adjudication of
the case. Furthermore, a juvenile court order is not final unless it disposes
of all the issues.” In re T.R., 705 N.W.2d at 10–11 (quoting In re C.S., 516
N.W.2d 851, 857 (Iowa 1994)); see also Iowa Code § 232.2(57)
(“ ‘Termination of the parent-child relationship’ means the divestment by the
court of the parent’s and child’s privileges, duties, and powers with respect
to each other.”).
3The juvenile court may, under certain circumstances not relevant in this case,
waive the requirement for making reasonable efforts. Iowa Code § 232.102(12).
13
An oral expression of an intended ruling is not the final action of the
court. See DeKruyff v. Johnston, 252 N.W.2d 389, 389–90 (Iowa 1977)
(holding no jurisdiction to entertain an appeal of trial court’s “informally
stated” intent to dismiss case during trial). And since the State is required
to show reasonable efforts as a part of its ultimate proof, In re L.M., 904
N.W.2d at 839; In re C.B., 611 N.W.2d at 493, we do not believe an oral
indication of an expected ruling is sufficient to terminate DHS’s obligation
to provide reasonable efforts.
However, DHS’s obligation to provide reasonable efforts until a final
written termination order does not necessarily require DHS to provide
reasonable efforts toward reunification. The legislature instructed that
“the paramount concern[s] in making reasonable efforts” are “[a] child’s
health and safety.” Iowa Code § 232.102(10)(a). Where it is inappropriate
to return a child to the family home, the legislature specified that
“reasonable efforts shall include the efforts made in a timely manner to
finalize a permanency plan for the child.” Id. “If it has been determined
that the child cannot return to the child’s home,” the child’s “case
permanency plan” must include “documentation of the steps taken to
make and finalize an adoption or other permanent placement.” Id.§ 232.2(4)(j). Therefore, the statute provides for situations in which
reunification need not be a goal or component of DHS’s reasonable efforts.
Our caselaw has recognized that the interests of the child take
precedence over family reunification. Our primary concern in termination
proceedings has always been the best interests of the child. See In re K.M.,
653 N.W.2d 602, 608 (Iowa 2002); In re S.O., 483 N.W.2d 602, 604 (Iowa
1992); In re Morrison Children, 259 Iowa 301, 311, 144 N.W.2d 97, 103
(1966). Still, before 1997, Iowa’s child welfare laws focused on reuniting
the family unit. In re J.E., 723 N.W.2d at 801. In the late 1990s, however,
14
the focus in termination cases shifted from reunification of the family to
the child’s best interests. In re K.M., 653 N.W.2d at 608. In determining
best interests, “we look to the child’s long-range as well as immediate
interests,” “consider[ ] what the future holds for the child if returned to the
parents,” and weigh “the child’s safety and need for a permanent home.”
In re J.E., 723 N.W.2d at 798 (majority opinion) (first and second
quotations) (quoting In re C.K., 588 N.W.2d 170, 172 (Iowa 1997)); In re
K.M., 653 N.W.2d at 608 (third quotation).
The shift in Iowa law tracked a change in federal law. In re J.E., 723
N.W.2d at 801–02 (Cady, J., concurring specially); In re C.B., 611 N.W.2d
at 493 (explaining that our laws relating to the welfare of children have
been driven by policies and laws generally developed at the national level).
The family preservation concept, which guided national policy on
reasonable efforts for two decades, “was found to be detrimental to
children in some cases.” In re C.B., 611 N.W.2d at 493. Consequently, in
1997, Congress “broaden[ed] the focus of reunification to place greater
emphasis on the health and safety of the child.” Id. The 1997 federal
legislation shifted the focus from family reunification to time-limited family
reunification services. In re C.M., 652 N.W.2d 204, 208 (Iowa 2002).
In bygone days, the best interests of a child was a broad
concept that embraced a multitude of considerations, and
prominently focused on the need to keep families together and
to avoid the termination of parental rights if at all possible.
No more. . . . We must apply this new rationale with earnest
in each case . . . pursuant to the policies established by our
legislature.
In re J.E., 723 N.W.2d at 802 (Cady, J., concurring specially).
Of course, reasonable efforts can, and often do, include efforts
toward reunifying a family, but the child’s health and safety are
paramount and conditions precedent to these efforts. Reasonable efforts
15
are services to “preserve and unify a family prior to the out-of-home
placement of a child in foster care or to eliminate the need for removal of
the child or make it possible for the child to safely return to the family’s
home.” Iowa Code § 232.102(10)(a). “Reasonable efforts may include but
are not limited to family-centered services, if the child’s safety in the home
can be maintained during the time the services are provided.” Id.(emphasis added). The reasonable efforts concept covers efforts to prevent
and eliminate the need for removal and to deliver reunification services
while providing adequate protection for the child. See In re C.B., 611
N.W.2d at 493. Our recognition that certain situations do not call for
efforts towards reunification does not mean that, in any case, DHS can fail
to deliver reasonable efforts toward reunification where statutorily
required or otherwise in the child’s best interests. 4 Rather, it is an
acknowledgment that efforts toward reunification are not always a
component of DHS’s reasonable efforts obligation.
In this case, then, whether reunification services were required
during the twenty-month period between the termination hearing and the
court’s termination ruling depends on the best interests of the children.
In its oral statement during the May 2017 hearing, the juvenile court
indicated its view that the children’s best interests would be served
through adoption and termination of the mother’s parental rights. Yet in
4Our statute thus complies with the requirements for federal funding mandating
that “the child’s health and safety shall be the paramount concern” in determining and
making reasonable efforts and that
reasonable efforts shall be made to preserve and reunify families . . . prior
to the placement of a child in foster care, to prevent or eliminate the need
for removing the child from the child’s home[,] . . . and to make it possible
for a child to safely return to the child’s home.
42 U.S.C. § 671(a)(15)(A)–(B) (2012). See generally In re L.H., 480 N.W.2d at 46 n.2
(recognizing that Iowa’s statutory provisions on reasonable efforts are necessary for
compliance with federal funding requirements).
16
its periodic review order of September 2016, the court stated that “the
permanency goal at this time is reunification with a concurrent goal of
termination of parental rights and adoption,” and the court appears to
have continued that order through at least September 2017. The court’s
inordinate delay in entering the written order was thus compounded by
inconsistent declarations on the type of services that would best serve the
child. 5
We have reversed the termination order in light of the court’s
erroneous refusal to reopen the record. Thus, it would be premature for
us to determine on the present record whether reasonable efforts toward
reunification during the twenty-month hiatus would have served the best
interests of the children and whether the lack of such services should have
an impact on termination. We reiterate for emphasis that DHS’s
reasonable efforts obligation continues until either a final written
termination order or a waiver by the juvenile court, Iowa Code
§§ 232.102(12), .117(1); In re T.R., 705 N.W.2d at 10–11, but the nature of
that obligation depends on the best interests of the children, Iowa Code
§ 232.102(10)(a); In re K.M., 653 N.W.2d at 608; In re C.B., 611 N.W.2d at
493. After receipt of the additional evidence on remand, the juvenile court
shall consider DHS’s efforts, or lack of efforts, in the period following the
district court’s termination hearing in determining whether the State has
shown reasonable efforts as a part of its ultimate proof. See In re L.M.,
904 N.W.2d at 839; In re C.B., 611 N.W.2d at 493–94.
5We recognize that reunification, adoption, and termination may be concurrent
goals for DHS’s reasonable efforts, and that those goals are not inconsistent because they
“reflect divergent possible outcomes for a child in an out-of-home placement.” Iowa Code
§ 232.2(4)(h). The problem here is that the court’s oral declaration at the May hearing
seems to have renounced the reunification goal even as its periodic written orders
maintained that goal.
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IV. Conclusion.
We reverse the termination order of the juvenile court and remand
the matter for further proceedings. Upon remand, the juvenile court shall
expeditiously reopen the record to permit the mother to supplement it.
The juvenile court shall then expeditiously consider the merits of the
petition for termination on the record previously made as supplemented
by the parties.
DECISION OF COURT OF APPEALS VACATED; JUVENILE
COURT ORDER REVERSED AND REMANDED.