IN THE INTEREST OF S.P. and J.P., Minor Children, H.L.P., Mother, Appellant, M.J.P., Father, Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-734 / 07-1388
Filed December 28, 2007
IN THE INTEREST OF S.P. and J.P.,
Minor Children,
H.L.P., Mother,
Appellant,
M.J.P., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Johnson County, Marsha M.
Beckelman, Judge.
A mother and father appeal from the order terminating their parental rights
to two children. REVERSED AND REMANDED ON BOTH APPEALS.
Natalie H. Cronk of Law Office of Natalie H. Cronk, Iowa City, for
appellant-mother.
Jacob R. Koller of Simmons Perrine, P.L.C., Cedar Rapids, for appellantfather.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant
Attorney General, Janet Lyness, County Attorney, and Kristin Parks, Assistant
County Attorney, for appellee.
Maurine Braddock of Honohan, Epley, Braddock & Brenneman, Iowa City,
for intervenor.
Shannon Walsh of Walsh Law Firm, Iowa City, guardian ad litem for minor
children.
Considered by Sackett, C.J., and Vaitheswaran and Baker, JJ.
2
SACKETT, C.J.
A mother and father appeal from the order terminating their parental rights
to two children.
They both contend the court erred (1) in finding clear and
convincing evidence supports the statutory grounds for termination, (2) in
determining the State made reasonable efforts toward reunification, and (3) in
determining that termination is in the children’s best interest. We reverse and
remand on both appeals.
I. Background.
The children, Skylar, born in May of 1999, and Jade, born in October of
2002, were removed from their parents’ care in July of 2005. During their time in
the home, the children were exposed to drug use, domestic violence,
pornography, and adult sexual activity.
The older child, Skylar, was abused
sexually. By the time of the termination hearing in October of 2006, she had
made progress in therapy, but there was testimony she needed placement in a
therapeutic foster home.
The juvenile court, in an order dated May 15, 2007, 1 terminated both
parents’ parental rights under Iowa Code sections 232.116(1)(i) (2007),
232.116(1)(f) (Skylar), and 232.116(1)(h) (Jade). It found the parents “have been
largely compliant and cooperative with services provided.” But, it concluded it
was “not clear from the evidence that [the parents] will be able to provide a
suitable family environment for their daughters in the future on an ongoing basis.”
The court further concluded:
1
Post trial motions were overruled in an order filed August 16, 2007. The case came to
us on October 10, over a year after the matter was tried.
3
Without assurance that the parents will adequately protect
their children from further abuse, the court concludes that S.P.
cannot be returned to the custody of either parent at this time
without being a child in need of assistance and without being in
danger of neglect. As with S.P., there is clear and convincing
evidence that J.P. cannot be returned to the custody of her parents
for the same reasons.
The court concluded the children’s grandmother was not an appropriate
placement for the children and that it was in the children’s best interest not to be
returned to either parent but “to be placed in foster care with the possibility of
adoption.”
II. Analysis.
Both parents contend on appeal that the State did not prove the statutory
grounds for termination by clear and convincing evidence, it did not make
reasonable efforts toward reunification, and termination is not in the children’s
best interest. The attorney for the father admits this case has significant bad
facts that paint an ugly picture, including substance abuse, domestic conflict,
criminal conduct, and as a byproduct of those facts, trauma to a child.
He
contends the bad facts occurred prior to removal of the children from their
parents on July 18, 2005. He argues that unlike many termination cases this
case also has good facts, including rehabilitation, acceptance of responsibility,
and full compliance with the case permanency plan. He contends the good facts
occurred after removal and symbolize the essential goal of the juvenile court
system, which is to maintain families.
He further argues that the pre-removal mistakes of these parents have
determined the outcome at every step in the child in need of assistance and
termination
proceedings,
while
their
post-removal
efforts
have
been
4
marginalized, ignored, or otherwise disregarded. He contends the key question
on appeal is whether the pre-removal bad facts justify termination of parental
rights notwithstanding the parents’ full compliance with the case plan.
He
suggests if the answer is in the affirmative, then the fate of these parents was
sealed at the removal and Iowa law requiring reasonable efforts to reunify
families is without teeth. He argues if the answer is in the negative, then these
parents should retain their parental rights and their family should be reunified.
The State argues there was clear and convincing evidence to support the
termination, the issue of reasonable efforts was addressed by this court in a May
12, 2006 decision and termination is in the children’s best interest.
When the court terminates parental rights on more than one statutory
ground, we may affirm if any of the grounds cited are supported by clear and
convincing evidence. See In re R.R.K., 544 N.W.2d 274, 276 (Iowa Ct. App.
1995). Sections 232.116(1)(f)(4) and 232.116(1)(h)(4) both require a finding the
child cannot be returned to the parents’ custody “at the present time.” Both
parents challenge the court’s determination the children could not be returned to
their custody at the time of the termination. They also challenge the application
of these sections to the circumstances of this case, arguing they have complied
in all essential respects with the requirements of the case permanency plans, yet
the court determined the children could not be returned home because the older
child needed more therapy and the younger child would be harmed by separation
from her sibling.
Reports from Family Systems of Iowa City include references that the
parents “have been very cooperative to date,” “maintained regular contact with
5
family services,” “incorporated Family Services suggestions into behavior
management during their visits,” “had their home clean and organized,” “stopped
smoking cigarettes in the family home,” “stated they made terrible mistakes,”
“continue to be on time, prepared, and appropriate at every visit,” “have made
good to excellent progress on reunification plan goals,” and “have cooperated
with virtually every task and expectation assigned to them by FS and DHS.”
The record is clear that the parents have done what they have been asked
to do. Theresa Dunnengton with Family Services, who had been more involved
with the family more than any one person, characterized their progress as
excellent. She saw no reason why the parents could not parent. Jill Foens with
DHS for eighteen and one-half years and the ongoing case worker for this family
from twenty days after the inception of the case testified the parents have done
what they were asked to do. When repeatedly asked what needs to be done she
indicated that Skylar needs to be ready, yet she was unable to articulate
specifically how this was to happen or what, if anything, the parents needed to
do.
Foens testified that the determination Skylar is ready requires the
compliance or approval of Elizabeth Dook, a clinical psychologist in private
practice. Foens requested that Dook, who holds a Ph.D. in clinical psychology,
meet with Skylar to determine the appropriate placement for her and to
determine if she had current mental health problems.
Dook saw Skylar in
November of 2005 and January of 2006. Dook spent five hours with Skylar for
the requested evaluation and an additional three hours to conduct an evaluation
of her attention deficit hyperactivity disorder.
Dook testified as a result she
determined Skylar needed to be in treatment-level foster care, and she needed
6
weekly play therapy and family therapy at some point because she had a
moderate to severe adjustment disorder.
Dook used tests in addition to the
interviews to arrive at these conclusions.
At the time of the October 2006
hearing Dook had had no participation in the case since April of that year.
The record supports the argument that Skylar has issues. The record also
supports a finding Skylar’s problems, at least in part, are the result of her parents’
fighting and drug use prior to her removal. What is not as clear is both the cause
and nature of Skylar’s sexual acting out, which was reported by the first of
Skylar’s three sets of foster parents. Dook appears to be of the opinion that this
behavior was the result of sexual abuse. She bases her conclusion on the tests
of and interviews with Skylar. The validity of Dook’s assessment was challenged
in part by Luis Rosell, who has a Ph.D. in psychology and, like Dook, is licensed
as a psychologist to practice in Iowa.
While the alleged sexual abuse appears to be the underlying factor in the
State’s reluctance to return the children home, in assessing this position we must
recognize that sexual abuse was not a ground for finding the children in need of
assistance, there has been no finding of sexual abuse, and the parents deny
there was sexual abuse and contend the sexual acting out did not occur while the
children were in their care. There was no evidence Skylar had acted out in
school prior to removal, and there was a question raised about sexual abuse by a
foster family with whom Skylar resided. Skylar had a physical examination at the
time of removal and no physical evidence of sexual abuse was noted. 2
2
The parents were not made aware of the fact the examination had occurred until the
termination hearing.
7
The State has failed to show by clear and convincing evidence that the
children cannot be returned home or that the problems that led to their removal
have not been corrected. Obviously Skylar has some problems and it is in her
best interest that she have therapy, something her parents recognize is largely
because of their earlier actions.
There is no evidence that Skylar cannot or will not receive such help in her
parents’ care. While there is a reference to the fact she is in a therapeutic foster
home, there is no evidence of what Skylar’s future holds. It is unclear what skills
the foster parents have that render them more able to provide for Skylar than her
biological parents, with whom the evidence shows her to be bonded. See In re
S.J., 451 N.W.2d 827, 830 (Iowa 1990) (holding that a professional opinion or
evaluation is needed to show child will continue to need specialized care).
The parents’ substance abuse was serious and led to the removal of their
children. In addition to their cooperation with services, the parents have shown
they are recovering substance abusers. The father’s probation officer testified to
the father’s attendance at Narcotics Anonymous meetings as well as his
monitoring of the father’s random drug tests. The evidence is the mother has
tested negative for drug use since the children were removed.
The mother has maintained constant employment with the University of
Iowa and the father has gone from part-time to full-time employment.
We reverse the terminations and remand to the juvenile court.
REVERSED AND REMANDED ON BOTH APPEALS.
Vaitheswaran, J. dissents.
8
VAITHESWARAN, J. (dissenting)
I respectfully dissent. In a prior appeal from the denial of an application to
modify a dispositional order, our court affirmed the juvenile court’s refusal to
return the children to the home of their parents. In re S.P. and J.P., No. 06-0904,
*3 (Iowa Ct. App. Aug. 9, 2006). While acknowledging that the parents “made
considerable progress in addressing the concerns of substance abuse and
domestic violence,” we stated “this case involves much more than issues relating
to parental problems and marital discord.”
Id. at *2.
We summarized the
additional issue, specifically affirming the juvenile court’s finding that the sexual
abuse of Skylar “occurred in her parents’ home.” Id. We also agreed with the
juvenile court that the Department made reasonable efforts towards reunification
and the juvenile court was correct in refusing to increase visitation. While this is
a different appeal from a different ruling, it is based on the same record and
much of the same key evidence. I would affirm.
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