IN THE INTEREST OF E.S., Minor Child, L.A.B., Mother, Appellant.
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF IOWA
No. 7-811 / 07-1612
Filed November 29, 2007
IN THE INTEREST OF E.S., Minor Child,
L.A.B., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Dubuque County, Thomas J.
Straka, Associate Juvenile Judge.
A mother appeals from the order terminating her parental rights to her
daughter. AFFIRMED.
Patricia M. Reisen-Ottavi of Kintzinger Law Firm, P.L.C., Dubuque, for
appellant.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant
Attorney General, Ralph Potter, County Attorney, and Jean Becker, Assistant
County Attorney, for appellee.
Dan McClean, Dyersville, for father.
Kim Roddick of Reynolds & Kenline, L.L.P., Dubuque, guardian ad litem
for minor child.
Considered by Sackett, C.J., and Vaitheswaran and Baker, JJ.
2
PER CURIAM
Lori, the mother of Emily and Zachary 1 , appeals from the order terminating
her parental rights to Emily. She contends the court erred (1) in terminating her
parental rights, but not Patrick’s, Emily’s father, (2) in failing to order reasonable
services for her, (3) in finding she was a risk of harm to Emily and a cause of
Emily’s psychological disorder, and (4) in failing to hold review hearings and
allowing suspension of her visitation without a hearing. We affirm.
I. Background
Zachary, born in 1992 and Emily, born in 1997, were removed from their
mother’s care in May of 2005 because of safety issues for the children. Both
were returned to Lori’s care a few days later with a safety plan and services to be
provided. Formal adjudication was suspended and services continued pending
sufficient progress by Lori that the case could be closed. Emily was removed
again one day after her return because Lori was conducting inappropriate
examinations of Emily’s genitalia, based on a belief Emily had been sexually
abused.
Following a hearing in July of 2005, Emily was found to be in need of
assistance. The court continued her foster care placement, ordered Lori and
Patrick to undergo a psychosocial evaluation and a mental health evaluation.
The court ordered family-centered services, counseling and play therapy for
Emily, random drug tests for Patrick, and a domestic violence program for Lori.
Lori was diagnosed with depressive disorder and paranoid personality
disorder with dependent, borderline, and obsessive compulsive features. She
1
The appeal from the permanency order concerning Zachary, No. 07-1544, is
addressed in a separate decision, In re Z.S., filed on ______________________.
3
tested positive for cocaine and refused to submit to follow-up drug testing. Emily
was diagnosed with reactive attachment disorder. During the pendency of the
case, Emily made progress in therapy and in foster care.
Following a disposition review hearing in October of 2005, the court
continued Emily’s foster care placement and services for Emily and the parents.
In May of 2006 Lori filed a request for a different therapist, which the court
granted. Hearings set for June and July case were continued to October. In
October, Lori’s attorney moved to withdraw and to continue the hearing. The
court granted the withdrawal, appointed new counsel for Lori, and scheduled a
permanency hearing in April of 2007. It also discontinued reunification services
for Lori “due to mother’s lack of progress and not being considered a placement
option for Emily.”
Reunification services continued to be provided to Lori in
Zachary’s case, however.
In March of 2007 Lori was admitted to the Family Empowerment Program,
but was discharged in May without completing the program. Also in March Lori
made an ex parte request for additional services, substitution of counsel, and a
continuance. The court denied Lori’s requests following a hearing in early April.
It also denied Lori’s counsel’s motion to withdraw. The court noted the children’s
cases had been pending for two years, they had been removed from Lori’s care
for more than a year, and “the time for permanency [was] long overdue.” It also
noted services had not been successful and Lori had “not made any progress on
her mental health issues despite two years’ worth of efforts.” The scheduled
permanency hearing was continued to May.
4
In May the State petitioned to terminate Lori’s and Patrick’s parental rights
to Emily. Evidence was received on May 23, June 6, June 15, and August 21 in
combined permanency-termination proceedings in both cases.
Lori failed to
return for the afternoon session on June 6. On June 9 she was injured in a fight
with her current boyfriend despite a domestic abuse no-contact order in effect.
At the August 21 hearing, Lori testified she had a pending OWI charge.
The court found clear and convincing evidence to terminate Lori’s parental
rights under Iowa Code section 232.116(1)(f) (2007) and that termination of Lori’s
parental rights was in Emily’s best interest. It concluded termination of Patrick’s
parental rights was not in Emily’s best interest.
Instead, it ordered another
permanent planned living arrangement with continued placement in foster care.
It provided for visitation for Patrick and his parents at the discretion of the
Department of Human Services. Lori appeals.
II. Scope of Review
Our review is de novo. In re K.N., 625 N.W.2d 731, 733 (Iowa 2001); Iowa
R. App. P. 6.4. The statutory grounds for termination must be supported by clear
and convincing evidence. In re T.B., 604 N.W.2d 660, 661 (Iowa 2000). We give
weight to the findings of the juvenile court, especially concerning the credibility of
witnesses, but are not bound by them. Iowa R. App. P. 6.14(6)(g).
III. Analysis
We first note that Lori has not directly challenged the statutory ground for
termination cited by the court. Consequently, any such challenge is waived. See
Iowa R. App. P. 6.14(1)(c).
5
A. Terminating Only One Parent’s Rights. Lori contends the court erred
in terminating her parental rights but not Patrick’s. The juvenile court found clear
and convincing evidence supported termination of both parents’ rights under
section 232.116(1)(f) in that Emily was ten years old, was a child in need of
assistance, had been removed from the physical custody of her parents for the
requisite period, and could not be returned to her parents at that time. It found
termination of Lori’s parental rights was in Emily’s best interest, but termination of
Patrick’s parental rights was not.
While we recognize both parents have problems that prevent Emily from
being placed in their custody, there are differences in Emily’s relationship with
each parent. In assessing best interests of a child, we evaluate the child’s longrange as well as immediate interests. In re K.F., 437 N.W.2d 559, 560 (Iowa
1989). We consider what the future likely holds for a child if returned to a parent.
See id. We gain insight into the child’s prospects by reviewing a parent’s past
performance—for it may indicate a parent’s future capabilities.
Id. We give
primary consideration to the physical, mental and emotional condition and needs
of the children. Iowa Code § 232.116(2); In re J.W.D., 456 N.W.2d 214, 217
(Iowa 1990).
A parent's mental disability, standing alone, is not a sufficient
reason to terminate parental rights.
J.W.D., 456 N.W.2d at 218.
We may
properly consider it, however, in determining whether a parent is able to function
as a parent effectively. In re T.T., 541 N.W.2d 552, 556 (Iowa Ct. App. 1995).
Iowa Code section 232.116 has been interpreted to allow the termination of one
parent’s rights. In re N.M., 491 N.W.2d 153, 155 (Iowa 1992). Consequently, the
rights of one noncustodial parent may be terminated without terminating the other
6
parent’s rights. See id. We, like the juvenile court find termination of Lori’s
parental rights to Emily appropriate under the circumstances before us.
We
agree with the juvenile court that termination of Patrick’s parental rights is not in
Emily’s best interest.
B.
Reasonable Efforts.
Lori contends the court erred “in failing to
appropriately order additional reasonable effort services” for her. She argues her
serious mental health diagnosis was not dealt with adequately because of
disjointed mental health treatment, a lack of opportunity for hands-on ongoing
therapy between Lori and Emily, a lack of review hearings, and conflicts between
Lori and Tammy Welbes, the case worker from the State.
We find the State made reasonable efforts to reunify Lori with Emily. Lori
did not take advantage of services and either was unable or unwilling to benefit
from them.
request.
When she asked for a different therapist, the court granted her
She exercised visitation with Emily until her best interest required
suspension of visitation. See In re M.B., 553 N.W.2d 343, 345 (Iowa Ct. App.
1996). Lori did not comply with requests for drug testing after testing positive for
cocaine in January of 2006. She did not take medication as ordered to help with
her mental health problems. When offered residential treatment, Lori rejected it.
When she entered the Empowerment Program, she failed to complete the
program successfully. Even though services for Lori eventually were suspended
in this case, they were continued in Zachary’s case. We find no merit in this
claim.
C. Risk of Emotional Harm. Lori contends the court erred in finding Lori
was a risk of emotional harm to Emily and that contact with Lori was the cause of
7
Emily’s reactive attachment disorder.
Neither finding is essential either to
support the statutory ground for termination or to the finding Emily could not be
returned to Lori’s care at the time of the termination hearings. It is abundantly
clear both Lori and Emily have significant psychological problems. We need not
consider whether Lori caused Emily’s problems.
When determining whether
Emily could be returned to Lori’s care, we need not limit our consideration of
possible harm only to emotional harm. The risk of any adjudicatory harm as set
forth in Iowa Code section 232.2(6) is sufficient to prevent returning a child to a
parent’s care. See Iowa Code § 232.102(9). We find Emily cannot be returned
to Lori’s care.
D. Hearings and Visitation. Lori contends the court erred in failing to hold
review hearings and in suspending visitation without a hearing.
Iowa Code
section 232.102(9) provides for a dispositional review hearing within six months
of the original dispositional hearing and subsequent review hearings within a year
of the first review hearing. This provision is directory, not mandatory. In re
A.E.O., III, 437 N.W.2d 238, 239-40 (Iowa 1989). Its aim is “to provide order and
promptness in the monitoring of dispositional orders.” Id. at 240. Lori argues
holding review hearings would have allowed the court to address the adequacy
of services and other concerns she raised in motions. The original disposition
occurred on July 13, 2005. A review hearing was held in October of 2005. Lori’s
request for a different therapist was met in May of 2006. A permanency hearing
in June of 2006 was continued to July. At Lori’s request it was continued again
to October. In October the hearing addressed reunification services and granted
Lori’s counsel’s motion to withdraw.
Appointment of new counsel required
8
continuing proceedings to give new counsel time to become familiar with the
case. We conclude the court adequately addressed issues and concerns as this
case progressed even though it held a specific “dispositional review” hearing only
in October of 2005. We also question whether this issue is properly before us
because it does not appear to have been presented to and ruled on by the district
court. See In re N.W.E., 564 N.W.2d 451, 455 (Iowa Ct. App. 1997).
Although visitation between a parent and child is an important ingredient
to the goal of reunification, In re S.W., 469 N.W.2d 278, 280-81 (Iowa Ct. App.
1991), the nature and extent of visitation is always controlled by the best
interests of the child and may warrant limiting parental visitation. See In re C.G.,
444 N.W.2d 518, 520 (Iowa Ct. App. 1989). A change in visitation could be
made by the State without a hearing because the court gave the State discretion
in allowing visitation with either parent.
We affirm the termination of Lori’s parental rights to Emily.
AFFIRMED.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
