In the Interest of J.L., Minor Child, V.L., Mother

IN THE COURT OF APPEALS OF IOWA
No. 15-0539
Filed June 10, 2015
IN THE INTEREST OF J.L.,
Minor Child,
V.L., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Floyd County, Karen K. Salic,
District Associate Judge.
A mother appeals the termination of her parental rights to her child, born in
2014. REVERSED AND REMANDED.
David A. Kuehner of Eggert, Erb, Mulcahy & Kuehner, P.L.L.C., Charles
City, for appellant mother.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant
Attorney General, and Rachel Ginbey, County Attorney, for appellee State.
Cynthia Schuknecht of Noah, Smith & Schuknecht, P.L.C., Charles City,
attorney and guardian ad litem for minor child.
Considered by Danilson, C.J., and Vaitheswaran and Doyle, JJ.
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VAITHESWARAN, J.
A mother appeals the termination of her parental rights to her child, born in
2014. She raises several issues, one of which we find dispositive: “the failure of
the Department of Human Services to provide a sign language interpreter . . .
knowing she was hearing impaired.”
I. Background Facts and Proceedings
According to the mother, she was “born deaf.” After she gave birth to her
son, she showed tendencies toward depression and suicide. The hospital
evaluated her, determined she was not a danger to herself or her child, and
released her, but not before contacting public service agencies to evaluate and
assist her.
The department obtained the mother’s consent to provide “safety
services.” Those services were slated to run for fifteen days but were extended
to thirty days. From the outset, the department social workers assigned to the
case knew of the mother’s hearing impairment and knew she used sign
language. The department did not assign her an interpreter to facilitate the
“safety services,” electing instead to communicate with her in writing. One of the
social workers characterized the process as “very difficult.”
When the child was one month old, the State filed a child in need of
assistance petition. The petition alleged the mother was “deaf and mute and
communication is difficult.” The petition further alleged the mother lacked basic
parenting skills. The child remained with his mother for a month after the petition
was filed. During this period, the department did not provide services because
the child had yet to be adjudicated in need of assistance.
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When the child was two months old, the juvenile court ordered his
temporary removal from the mother. The order required an American Sign
Language interpreter for the hearing on the removal order. The department did
not provide similar interpretive services despite the fact its report filed within
twenty-four hours of the removal order stated the mother wrote “notes back and
forth to communicate and her conversation skills appeare[d] like that of someone
lower functioning.”
Within two weeks of the removal order, the mother’s attorney moved for
reconsideration of the order, asserting, in part, that the mother “is deaf and mute
and at no time has the Department involved an interpreter to assist with her
communication with [the department and service] provider or the doctor involved
in these services despite the Americans with disabilities act.” In response, the
juvenile court ordered “[t]he Department and providers” to “make every
reasonable effort to ensure that an interpreter is available for [the mother] during
the provision of services.” No interpreter was immediately furnished. By this
time, the child was three months old.
The department first furnished an interpreter at a family team meeting and
a supervised visit scheduled for the week before a delayed adjudicatory hearing.
The juvenile court’s adjudication order concluded the department made
reasonable efforts to reunify the family. As of the date of the order, four months
had elapsed since the child’s birth and the department’s involvement.
When the child was seven months old, the State filed a petition to
terminate the mother’s parental rights. At a hearing on the petition, the mother’s
attorney again raised the department’s failure to timely furnish interpreter
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services. The court framed the issue he raised as “reasonable effort[s] have not
been made to reunify [her] with her child, in particular that interpreter services
were not provided.” While the court expressed frustration at the delay in
provision of interpreter services, the court stated access to hearing-impaired and
other services was more difficult in their “rural area” and “reasonable attempts to
adapt to the circumstances to meet the ultimate goal of reunification often must
be used until the access obstacles are overcome.” The court also stated the
mother “communicated freely through written” notes and sought clarification
when necessary. Finally, the court cited the availability of interpreter services for
the final four-and-a-half months of the proceedings and stated the real obstacle
to reunification was the mother’s decision to do “whatever she wants.” The court
terminated the mother’s parental rights pursuant to two statutory provisions. At
the time of termination, the child was eight months old.
The mother timely filed a motion for new trial pursuant to Iowa Rule of Civil
Procedure 1.1004. See Iowa R. Civ. P. 1.1007 (stating new trial motions under
rule 1.1004 “must be filed within fifteen days after filing of the . . . decision”). She
asserted the juvenile court impermissibly terminated her parental rights pursuant
to a statutory provision not alleged in the State’s termination petition. The
juvenile court denied the motion on the ground the mother’s parental rights were
also terminated under a separate provision alleged in the petition—Iowa Code
section 232.116(1)(h) (2015). The mother filed a notice of appeal within fifteen
days of the denial order.
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II. Jurisdiction of Appeal
Iowa Rule of Appellate Procedure 6.101(1)(a) governs the timeliness of
appeals from termination-of-parental rights decisions. It states:
A notice of appeal from a final order or judgment entered in Iowa
code chapter 232 termination-of-parental-rights or child-in-need-of-
assistance proceedings must be filed within 15 days after the filing
of the order or judgment. However, if a motion is timely filed under
Iowa R. Civ. P. 1.904(2) or Iowa R. Civ. P. 1.1007, the notice of
appeal must be filed within 15 days after the filing of the ruling on
such motion.
As a preliminary matter, the State contends this court “lacks jurisdiction of
the matter because the notice of appeal was not timely filed.” The State
concedes the notice was filed within fifteen days of the juvenile court’s denial of
the new trial motion but asserts the motion “was vague and without merit and,
therefore, was insufficient to toll the time for filing a notice of appeal.”
Iowa Rule of Civil Procedure 1.1004 authorizes a new trial in several
situations, including where “the verdict, report or decision is not sustained by
sufficient evidence, or is contrary to law,” or where there are “[e]rrors of law
occurring in the proceedings, or mistakes of fact by the court.” Iowa R. Civ. P.
1.1004(6), (8). The mother cited the rule and pointed out the court’s error in
relying on an unpled statutory termination ground. Although the mother did not
specifically refer to subsections 6 and 8 of rule 1.1004, the juvenile court clearly
understood the gravamen of her motion and, while declining to grant a new trial,
corrected its error.
The State notes the mother could have raised the error on appeal without
filing a posttrial motion. We agree. However, her decision to give the juvenile
court the first opportunity to correct the error does not render the motion
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improper. See generally Iowa Elec. Light & Power Co. v. Lagle, 430 N.W.2d 393,
395-96 (Iowa 1988) (stating “[a] district court’s power to correct its own perceived
errors has always been recognized by this court, as long as the court has
jurisdiction of the case and the parties involved”).
Nor does the label attached to the motion matter. Id. at 395 (“The label
attached to a motion is not determinative of its legal significance; we will look to
its content to determine its real nature.”). The point of the mother’s motion was
to have the court delete the unpled ground. The mother accomplished this goal
and the State concedes this was the correct outcome. We conclude the mother’s
motion for new trial was timely and proper and tolled the time for filing a notice of
appeal. See McKee v. Isle of Capri Casinos, Inc., __ N.W.2d __, 2015 WL
1874608, at *6-7 (Iowa 2015) (rejecting assertion that posttrial motion filed
pursuant to rule 1.904(2) was filed for an improper reason and failed to toll the
time for filing a notice of appeal); Sierra Club Iowa Chapter v. Iowa Dep’t of
Transp., 832 N.W.2d 636, 641-42 (Iowa 2013) (concluding rule 1.904(2) motion
tolled the time for filing notice of appeal where motion raised legal issues with
underlying issues of fact). Cf. In re Estate of Hord, 836 N.W.2d 1, 4-5 (Iowa
2013) (noting appellant’s argument that new trial motion was valid motion which
tolled time for filing notice of appeal if their rule 1.904(2) motion for enlarged
findings and conclusions was not, and concluding appeal time was tolled by latter
motion). Accordingly, we proceed to the merits.
III. Reasonable Efforts
The department has an obligation to make reasonable efforts to facilitate
reunification. See Iowa Code § 232.102(10); In re C.B., 611 N.W.2d 489, 493
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(Iowa 2000). Reasonable efforts play “a critical role . . . from the very beginning
of intervention.” C.B., 611 N.W.2d at 493. The reasonable efforts requirement is
“part of [the department’s] ultimate proof the child cannot be safely returned to
the care of a parent.” See id. at 492-93 (noting re-lettered provision contained an
element “which implicates the reasonable effort requirement”). See also Iowa
Code § 232.116(1)(h) (requiring proof of several elements including proof the
child could not be returned to the mother’s custody).
Our de novo review of the record reveals the following facts. According to
a department social worker called to the hospital following the child’s birth, a
nurse told her “communication with [the mother] is very difficult, as she is deaf
and mute. They communicate by writing notes, but sometimes what [the mother]
writes is difficult to understand.”
The social worker immediately tested the mother’s written communication
skills. The answers to her questions were at best off the mark. Nonetheless, the
department cited the mother’s written communication skills as a basis for
declining to hire an interpreter. Medical records obtained by the department
called the department’s decision into question.
A psychiatric discharge summary on the mother stated her “ability to
express ideas in writing appears somewhat limited.” The summary also indicated
“possible cognitive inefficiency, particularly with respect to verbal abilities.” While
finding the mother “better with hands-on visual task[s],” the summary also stated
“she might have problems when tasks are more complex or abstract.” Another
medical note stated the mother “has some speech which is very difficult to
understand. She communicates through writing which is, unfortunately, also
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difficult to understand.” A third medical note characterized the mother as
“hearing impaired, sign-language communicating.”
As discussed, the department was aware of the mother’s comfort with sign
language. Indeed, the department reported that the mother “loved” the fact one
of her friends used sign language with her. Despite this knowledge, the
department did not retain a sign language interpreter for four months.
Notably, the mother and a deaf advocate met with the department case
manager approximately three weeks after the department became involved to
review the services provided by the department. In response to their request for
a new visitation supervisor, the manager said the mother was ineligible for
“Targeted Case Management Services.” At the same time, the manager said the
mother could apply for those services because “she functioned just below
average level.” There is no indication the manager assisted her in completing
the application or facilitated the provision of these more intensive services with
the use of an interpreter.
At the termination hearing, the department case manager conceded the
importance of an interpreter, stating “it’s very helpful to have the interpreter
there.” She acknowledged she was “to provide clients with . . . their preferred
communication,” agreed she made no inquiry into the mother’s preferred method
of communication despite her knowledge of the mother’s facility with sign
language, and agreed the mother “repeated several times she want[ed] an
interpreter.”
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The visitation supervisor also testified it was easier to use an interpreter
than to communicate with the mother in writing. She acknowledged the mother
did not understand some of the written notes.
The mother’s deaf advocate testified she provided the department with a
list of local interpreters approximately two months after the child’s birth. She
further stated “if [the department] had provided interpreters earlier in the process,
it would have made a significant difference in her ability to make progress.”
Significantly, the department’s nondiscrimination policy, introduced at the
termination hearing, requires the department to ensure that “no person will be
excluded from participation in, be denied the benefit of, or be otherwise subjected
to discrimination for any services because of protected category status.” Iowa
Dep’t of Human Servs., Policy No. 1-D, Nondiscrimination, at 2 (2009), available
at http://dhs.iowa.gov/policy-manuals/administration. The department manual
highlights the importance of interpretative services in implementing this policy.
Id. at 3-5. The manual specifically holds the department responsible for
“[i]dentify[ing] translation and interpretation resources, including their location and
their availability” and “[a]rrang[ing] to have these resources available in a timely
manner” for those who “are unable to speak, read, write, or understand the
English language at a level that permits the person to interact effectively with
health and social services agencies and providers.” Id. at 2, 3. During fifty
percent of the department’s involvement, the mother lacked the key service
necessary to “interact effectively with health and social services agencies and
providers.” Id. at 2. The department’s refusal to furnish a sign language
interpreter immediately amounted to a violation of its statutory reasonable efforts
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obligation and a failure of proof on the statutory termination element cited by the
juvenile court. See Iowa Code § 232.116(1)(h).
Having concluded the department did not satisfy its statutory obligation to
make reasonable efforts towards reunification, we find it unnecessary to address
the mother’s contention that the department’s failure to provide interpretative
services also violated the Americans with Disabilities Act (“ADA”). In declining to
reach this issue, we have canvassed opinions addressing both statutes. Certain
states view the obligations under each statute as co-extensive. See J.H. v.
State, Dep’t of Health & Soc. Servs., 30 P.3d 79, 86 n.11 (Alaska 2001) (noting
Alaska statutory requirement “that the department make reasonable efforts to
provide [mother] with family support services appears to be essentially identical
to the ADA’s reasonable accommodation requirement. Accordingly, we need not
independently address [the mother’s] ADA theory in disposing of her appeal”); In
re Terry, 610 N.W.2d 563, 570 (Mich. Ct. App. 2000) (finding no conflict between
ADA and Michigan’s Juvenile Code, which requires court to determine whether
agency made “reasonable efforts” to correct conditions that led to its involvement
and finding consistency between reasonable efforts requirement and reasonable
accommodation requirement of ADA). Certain others hold the termination statute
controls. See In re Torrance P., 522 N.W.2d 243, 245-46 (Wis. Ct. App. 1994)
(“The duty to make a diligent effort to provide court-ordered services is defined
by the TPR statutes and not the ADA. The ADA does not increase those
responsibilities or dictate how those responsibilities must be discharged. . . .
Because the ADA does not affect our inquiry of whether the County made a
diligent effort to provide [the father] with court-ordered services as required under
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[the Wisconsin termination statute], we do not determine whether the County
reasonably accommodated [the father’s] disability.”). Still others affirmatively
preclude parents from raising the ADA as a defense to a termination action but
address accommodation issues in the context of their reasonable efforts
requirement. See, e.g., In re Doe, 60 P.3d 285, 293 (Haw. 2002) (declining to
allow parent to raise violation of ADA as a defense to a termination proceeding
but noting department has obligation to make reasonable efforts to reunify parent
and child); In re C.M.S., 646 S.E.2d 592, 595 (N.C. Ct. App. 2007) (noting
because state statute required department to make reasonable efforts to prevent
or eliminate need for placement, ADA did not prevent state from terminating
mother’s parental rights).
Iowa has alluded to the ADA in several termination opinions. See
generally In re C.M., No. 04-1052, 2004 WL 1900100, at *2 (Iowa Ct. App. Aug.
26, 2004) (noting ADA “requires a public entity to make ‘reasonable
accommodation’ to allow a disabled person to participate in services”); In re K.K.,
No. 04-0166, 2004 WL 574685, at *1 (Iowa Ct. App. Mar. 24, 2004) (“assuming
without deciding the mother has a qualifying disability under the ADA” and
concluding department reasonably accommodated mother); In re A.M., No. 99-
420, 1999 WL 780586, at *3-4 (Iowa Ct. App. Sept. 29, 1999) (noting “under the
ADA, a public entity is prohibited from discriminating against a disabled person
by excluding him or her from participation in public services, programs, or
activities” and must make “reasonable accommodation”); In re C.M., 526 N.W.2d
562, 566 (Iowa Ct. App. 1994) (noting “[t]he ADA prohibits a public entity from
discriminating against a disabled person by excluding her from participation or by
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denying the benefits of public services, programs, or activities”) (citing 42 U.S.C.
§ 12132 (1993), which provides “Subject to the provisions of this subchapter, no
qualified individual with a disability shall, by reason of such disability, be
excluded from participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to discrimination by any
such entity”). However, our appellate courts have not precisely defined the
relationship between the two statutes. See generally Jude T. Pannell,
Unaccommodated: Parents with Mental Disabilities in Iowa’s Child Welfare
System and the Americans with Disabilities Act, 59 Drake L. Rev. 1165 (2011);
Dale Margolin, No Chance to Prove Themselves: The Rights of Mentally
Disabled Parents under the Americans with Disabilities Act and State Law, 15
Va. J. Soc. Pol’y & L. 112 (Fall 2007); Teri L. Mosier, Note, “Trying to Cure a
Seven-Year Itch”: The ADA Defense in Termination of Parental Rights Actions,
37 Brandeis L.J. 785 (Summer, 1998-1999). Our disposition is not inconsistent
with prior Iowa authority.
We reverse the juvenile court’s termination of the mother’s parental rights
to her child and remand for an order pursuant to Iowa Code section 232.117(2)
dismissing the termination petition as to her.
REVERSED AND REMANDED.