IN THE COURT OF APPEALS OF IOWA
No. 1-317 / 11-0340
Filed May 25, 2011
IN THE INTEREST OF M.G.,
Appeal from the Iowa District Court for Polk County, Constance C. Cohen,
Associate Juvenile Judge.
A mother asks us to reverse the juvenile court order terminating her
parental rights to her daughter. REVERSED.
Nancy L. Pietz, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Janet L. Hoffman, Assistant Attorney
General, John P. Sarcone, County Attorney, and Andrea Vitzhum, Assistant
County Attorney, for appellee.
Lynn Poschner of Borseth Law Office, Altoona, for father.
Charles Fuson of Youth Law Center, Des Moines, attorney and guardian
ad litem for minor child.
Considered by Eisenhauer, P.J., and Potterfield and Tabor, JJ.
A mother asks us to reverse the juvenile court order terminating her
parental rights to her now four-year-old daughter, M.G. On appeal, the mother
§ 232.116(1)(d), (h), (l) (2009). She also asserts termination is not in the child’s
best interest. Iowa Code § 232.116(2). She further argues termination was not
necessary for two reasons: (1) the court placed M.G. in the custody of the girl’s
father and (2) severing the mother’s rights would be detrimental to M.G. because
of the strong mother-daughter bond. See Iowa Code § 232.116(3)(a), (c) (2009).
Finally, the mother attacks the juvenile court’s reliance on an incomplete childprotection assessment and unresolved criminal charges involving the mother.
We reject the mother’s challenge to the statutory bases for the
termination. The mother did not argue in juvenile court and does not claim on
appeal that M.G. could be returned to her care at the present time or in the
foreseeable future or that the circumstances that led to adjudication have been
resolved. On the other hand, we agree with the mother that termination of only
her parental rights was not in M.G.’s best interests in the long term and was not
necessary given that the court placed M.G. in her father’s custody. Accordingly,
we reverse the termination.
Background and Proceedings
Amy and Chris are the unmarried parents of M.G., who was born in April
The juvenile court adjudicated M.G. as a child in need of assistance
(CINA) in October 2009 after a Department of Human Services (DHS)
investigation discovered that the parents were using methamphetamine and Amy
allowed a drug dealer to stay in her home. The court removed M.G. from her
parents’ care and placed her with a paternal aunt.1
Following a dispositional hearing on December 1, 2009, the juvenile court
noted that the parents were addressing their mental-health diagnoses and
―gaining good insight regarding all the issues of these cases.‖
February 4, 2010 dispositional hearing, the court made the following finding of
fact: ―At a Family Team Meeting earlier today mother expressed candor and
demonstrated insight not previously present. It is hoped that this will translate to
On May 12, 2010, the juvenile court granted a request for concurrent
jurisdiction so that Chris and Amy could pursue custodial orders in the district
court. On July 8, 2010, the juvenile court continued M.G.’s placement with her
aunt, noting that Chris recently tested positive for cocaine.
But the court
proposed that M.G. could be returned to her mother’s care within three months if
the mother met several expectations:
maintain sobriety and healthy lifestyle, maintain nurturing
relationship with [M.G.], demonstrate ability to meet [M.G.’s]
emotional and basic needs, mother will obtain and maintain
employment and independent housing, and parents will resolve
mental health problems.
The next hearing was set for October 14, 2010, but was rescheduled
because the State changed its recommendation and expressed its intent to file a
The court also removed Amy’s older son, who has a different father. That child is not
involved in this termination case.
petition to terminate parental rights.
The court set a termination hearing for
January 6, 2011.
The DHS held a family team meeting on October 25, 2010; notes from that
meeting indicate that Amy was being ―honest with the team‖ and continued to
participate in therapy. The notes also said that both Chris and Amy ―display
good parenting skills‖ and are able to respond to M.G.’s needs. The workers
expressed that the parents loved M.G. and ―are bonded to her.‖ Workers thought
that Amy would benefit from having a specialist review her prescription
medications. The notes also indicated that Chris relapsed on methamphetamine
and was not forthcoming because he was afraid of losing M.G.
following the meeting was for Amy and Chris to spend five hours of semisupervised time each week with M.G.
In a progress report dated November 22, 2010, care coordinator Joe
Nixon wrote that Amy continued to maintain employment, recently moved to a
new apartment that was suitable for her and her daughter, and ―is starting to
demonstrate that she can meet her daughter’s basic needs.‖
―Amy has made progress forward.‖ He recommended that Amy be ―given more
time to prove herself‖ and observed: ―Delaying termination would seem to cause
less emotional harm on [M.G.] than termination of the relationship between
[M.G.] and her mother.‖
Nevertheless, on November 29, 2010, the State filed a petition for
termination of parental rights. In early December, Amy learned that the DHS
changed her visitations with M.G. back to being fully-supervised because of
allegations that Amy had been drinking alcohol. Amy told care coordinator Nixon
on December 3 and December 15, 2010, that she was ―very frustrated‖ by the
allegations and that she had remained sober.
On December 18, 2010, the Altoona police stopped Amy for erratic driving
and speeding and charged her with operating while intoxicated (OWI). She told
the arresting officer that ―she no longer wanted to live.‖ Amy wrote in a letter to
the juvenile court that she ―really thought things were going great‖ and that she
―was going to get [M.G.] back.‖ But when Amy learned of the State’s intent to
terminate her parental rights she was ―devastated‖ and made the ―poor choice‖ to
drink alcohol and then drive.
At the January 6, 2011 hearing, the State dismissed its termination petition
against Chris and requested that M.G. be placed in his custody ―so long as he
continues to cooperate with the recommendations of DHS.‖
As for the termination of Amy’s parental rights, the State did not present
live witnesses at the hearing, instead offering several exhibits and asking the
court to take judicial notice of the previous dispositional hearings. Also at the
termination hearing, DHS worker Jessica O’Brien addressed the juvenile court
concerning a not-yet-completed child protective report. The worker told the court
that she believed based on a preliminary conversation with her colleague working
on the investigation that there would ―be a founded report‖ that Amy provided
alcohol to her boyfriend’s minor son. O’Brien said: ―[T]he initial concern that
brought us back to supervised visits was that there were concerns of Amy
drinking again.‖ Apparently, the State did not supplement the record with the
completed version of this child-abuse report, because the juvenile court
mentioned the incomplete report in its termination decision.
Although contesting termination of her parental rights, Amy did not present
any evidence at the hearing. Her attorney offered the following argument:
[I]t’s short-sighted to enter an order terminating her parental rights
when there are other options available, such as a long-term transfer
of custody, such as allowing the district court to have an order
entered in the paternity action, which I believe there’s still
concurrent jurisdiction out there . . . .
Amy indicated to her counsel that she would be willing to sign an
agreement to grant Chris sole legal and physical custody of M.G. Her counsel
also pointed out that termination would foreclose any obligation for child support,
despite the fact that Amy was employed. Amy’s counsel further argued: ―[I]n
effect, the court will leave this child legally motherless for the next 15 years . . . .
She’s three.‖ Counsel asserted that Amy ―certainly has the ability to financially
support this child over the course of that time frame.‖
The juvenile court rejected these arguments, finding no compelling reason
to maintain the child’s relationship with her mother, despite recognizing a strong
bond between Amy and M.G. The court considered the fact that terminating
Amy’s parental rights would eliminate a source of financial support for the child,
but gave it little weight considering Amy’s unstable work history.
Unfortunately Amy failed to comply with clear expectations of
the Court in its permanency order of July 8, 2010. Amy was given
a great deal of time within which to demonstrate the expected
behavioral changes that would have eliminated the need for
[M.G.’s] removal, but rather than continuing the progress, her
progress significantly deteriorated.
The juvenile court recognized that it was ―an extreme remedy‖ to terminate
the parental rights of one parent when the permanency plan is custody with the
other parent. But the court decided that M.G.’s stability would be disrupted by
Amy’s current behaviors. The court summarized its findings like this: ―Amy
made terrible decisions at the eleventh hour that endangered [M.G.] and
sabotaged imminent reunification.‖ Amy appeals the termination decision.
Scope of Review
We exercise de novo review in termination appeals.
N.W.2d 703, 706 (Iowa 2010).
In re D.W., 791
While we give weight to the juvenile court’s
findings of fact, we are not bound by them. Id. We give no weight to allegations
that are not supported by the record. See In re Nash, 739 N.W.2d 71, 73 n.3
(Iowa 2007). Even when the State satisfies the statutory grounds for termination
under section 232.116(1), our decision to terminate parental rights must reflect
the child’s best interests. In re M.S., 519 N.W.2d 398, 400 (Iowa 1994). The
best-interest determination focuses on the child’s safety; her physical, mental,
and emotional condition and needs; and the placement that best provides for her
long-term nurturing and growth. Iowa Code § 232.116(2); see In re P.L., 778
N.W.2d 33, 40 (Iowa 2010) (holding ―there is no all-encompassing best-interest
standard to override the express terms‖ of the statute).
Statutory grounds for termination exist.
Amy argues generally that the State failed to prove the statutory grounds
for termination, but does not point to any specific element that the evidence did
not satisfy. Even in the abbreviated briefing that is allowed in expedited parental
termination appeals (Iowa Rs. App. P. 6.201(1)(d), 6.1401–Form 5), Amy’s
position is not sufficiently formulated to facilitate our review. Cf. State v. Philpott,
702 N.W.2d 500, 504 (Iowa 2005) (―Defendant’s arguments on the evidentiary
issues are too vague and indefinite to support the granting of relief based on the
admission of improper evidence.‖).
Even if Amy had sufficiently preserved this issue for our review, the record
contains clear and convincing evidence to satisfy all three statutory bases relied
upon by the juvenile court.
The court adjudicated M.G. as a CINA and the
circumstances that led to that adjudication persisted despite Amy’s receipt of
services. Iowa Code § 232.116(1)(d). M.G. was three years of age at the time of
the termination, had been adjudicated CINA, had been out of her mother’s care
for fifteen months, and—given her mother’s recent arrest for operating while
intoxicated—could not be returned to her mother’s custody at the time of the
Iowa Code § 232.116(1)(h).
And the evidence of Amy’s relapse
supported the finding that she suffered from a severe, chronic substance abuse
problem, presented a danger to herself and others, and given that prognosis the
child could not be returned to her care within a reasonable period of time. Iowa
Code § 232.116(1)(l). We agree with the juvenile court’s conclusion that the
evidence supported the statutory grounds for termination.
Termination of only her mother’s parental rights is not in
M.G.’s best interest and is not necessary given placement of the child with
We part ways with the juvenile court on whether terminating Amy’s
parental rights was in M.G.’s best interest considering the factors in section
232.116(2) and whether this was an appropriate case to exercise discretion not
to terminate given the circumstances listed in section 232.116(3)(a) and (c).
On the question of best interests, this is not a case like In re P.L., 778
N.W.2d at 41, where the termination of Amy’s parental rights would free up M.G.
for adoption. The DHS entrusted M.G. to her father. That placement would not
change regardless of whether the court terminated Amy’s parental rights. M.G.
would not be deprived of permanency if Amy’s rights were kept intact.
M.G.’s physical, mental, and emotional needs are not well served by
severing legal ties with her mother.
Termination of Amy’s rights leaves the
responsibility for M.G.’s financial needs with a single parent or the state. The
termination decision should have accorded more significance to the fact that Amy
had a job and could help support M.G. financially during her childhood. The
child’s needs would be better met by requiring the mother to pay child support
than by terminating her parental rights. Cf. In re T.O., 519 N.W.2d 105, 107
(Iowa Ct. App. 1994) (explaining that terminating parental rights completely
severs duty of support and affirming dismissal of father’s voluntary petition to
terminate his own parental rights as not in child’s best interests); but cf. In re
Beck, 793 N.W.2d 562, 567 (Mich. 2010) (holding termination of parental rights
does not remove the obligation of financial support as Michigan statutes
distinguish between parental rights and parental obligation of support).
Monetary support notwithstanding, termination of the rights of one parent
may be justified even when custody is entrusted to the other parent, if the noncustodial parent’s conduct is likely to interfere with the effective care giving of the
custodial parent. See In Interest of N.M., 491 N.W.2d 153, 155 (Iowa 1992) (―We
conceive of situations when a child in the custody of one parent would benefit
from the termination of the other parent's rights.‖). But as the mother’s petition
on appeal points out, ―There is no evidence before the Court to support a finding
that this child’s mother would disrupt [M.G.’s] placement with her father.‖ The
record contains no evidence of ongoing hostility between Amy and Chris. Amy’s
recent lapses in judgment, though troubling, have not directly involved M.G.
Just forty-five days before the termination hearing, the care coordinator
assigned to M.G.’s case was touting Amy’s progress. He opined that delaying
termination to give Amy ―more time to prove herself‖ would bring less emotional
harm to M.G. than going forward with termination. Despite the care coordinator’s
optimistic comments, the county attorney opted to file a petition for termination of
parental rights. There is no question that Amy fell apart when she learned of the
State’s plans to move forward with termination.
Her poor decision-making
obviously rendered her unable to resume custody of M.G. at any time in the
foreseeable future. But the question is whether the mother’s serious setback is
cause for termination given the three-year-old child’s placement with her father
and the undisputed bond with her mother. See Iowa Code § 232.116(3). Given
all of the circumstances of this case, we do not believe that termination is
Our case law reminds us that ―termination is an outcome of last resort.‖ In
re B.F., 526 N.W.2d 352, 356 (Iowa Ct. App. 1994) (―Legally ending a
relationship with an ineffectual but loving and caring mother, without being
reasonably assured of any hope of permanency with an adopted family, is of
doubtful advantage to these children.‖).
We do not dismiss the termination
request lightly nor do we excuse the reckless behavior2 exhibited by Amy at such
a crucial point in her quest to reunite with M.G. But we do not think that it will
benefit M.G. to terminate her mother’s rights at this juncture.
The juvenile court acknowledged the loving bond between Amy and M.G.,
but noted that M.G. was lucky enough to have other ―mother role model[s]‖ in her
life. In our view, those relatives, no matter how committed to her well being,
cannot replace M.G.’s tie with her biological mother. See Santoksky v. Kramer,
455 U.S. 745, 753, 102 S. Ct. 1388, 1394–95, 71 L. Ed. 2d 599, 606 (1982) (―The
fundamental liberty interest of natural parents in the care, custody, and
management of their child does not evaporate simply because they have not
been model parents or have lost temporary custody of their child to the State.‖).
We share the mother’s concern about the juvenile court’s reliance on the incomplete
child-protective assessment. We recognize that the rules of procedure are ―liberally
applied‖ in child-welfare cases so that ―all probative evidence might be admitted.‖ In re
J.R.H., 358 N.W.2d 311, 318 (Iowa 1984). But in this case, the DHS worker who shared
the information with the court was not a sworn witness, was not subject to cross
examination, and relayed a second-hand, incomplete report. We find that evidence
unreliable and decline to consider it on appeal. By contrast, the State offered the
mother’s OWI arrest report as an uncontested exhibit and the mother admitted that
conduct in her letter to the court. We find no error in consideration of Amy’s arrest.
We find clear and convincing evidence in the record that termination of Amy’s
rights would be detrimental to M.G. due to the closeness of their relationship.
See Iowa Code § 232.116(3)(c). We also believe that the court did not need to
terminate Amy’s rights given its decision to follow the DHS recommendation to
place M.G. with Chris. See Iowa Code § 232.116(3)(a).
We conclude termination of Amy’s parental rights was not in M.G.’s best
interests and, considering the factors in section 232.116(3)(a) and (c),
termination of the mother-daughter relationship is not necessary at this time.