IN THE INTEREST OF D.B., J.H., J.H., JR., and A.H., Minor Child, A.M.C., Mother, Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-131 / 08-1967
Filed April 8, 2009
IN THE INTEREST OF D.B., J.H., J.H., JR.,
and A.H., Minor Child,
A.M.C., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Susan Flaherty,
Associate Juvenile Judge.
A mother appeals from the juvenile court order terminating her parental
rights to four of her five children. REVERSED AND REMANDED.
John J. Bishop, Cedar Rapids, for appellant.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant
Attorney General, Harold Denton, County Attorney, and Rebecca Ann Belcher,
Assistant County Attorney, for appellee.
Henry Keyes of Keyes Law Offices, Cedar Rapids, for father.
Robert Davison, Cedar Rapids, attorney and guardian ad litem for minor
children.
Considered by Sackett, C.J., and Miller and Mansfield, JJ.
2
SACKETT, C.J.
This is an appeal by a mother from a juvenile court order terminating her
parental rights to four of her five children. The children at issue were born in
January of 1999, March of 2004, January of 2006, and April of 2007.1 The oldest
child’s father’s parental rights were terminated as were the parental rights of the
younger three children’s father.
Neither father has appealed.
The mother
contends that the State failed to make reasonable efforts towards family
reunification and failed to prove the children could not be returned home. We
reverse and remand.
SCOPE OF REVIEW. We review termination proceedings de novo. In re
C.B., 611 N.W.2d 489, 492 (Iowa 2000).
BACKGROUND. The family had three children living in their home when
they came to the attention of the Iowa Department of Human Services following a
report on July 18, 2006, that the child born in March of 2004 was walking
unattended near the street. An investigation revealed that the child had opened
the door to the family apartment and walked outside. Police had been called and
when an officer located the child’s father he was out looking for the child. The
father said he had gone to the bathroom and when he came out the child was
gone.
The mother was working outside the home at the time of the child’s
escape. A worker visiting the parents’ home at that time reported that there was
nothing noteworthy concerning the children’s behaviors. It appeared the children
got along with each other and no negative interactions between them were
1
A fifth child, born in April of 2008, and voluntarily placed in foster family care following
her birth, is not a subject of these proceedings.
3
observed; rather, they were seen as being pleasant and cooperative with each
other and wishing to reside with their parents with whom they appeared to be
bonded. No developmental or social delays in the children were observed nor
was there any report that the children had health problems. It was recommended
that the family utilize services under juvenile court supervision, that the parents
have mental health evaluations, and that they receive services to enhance their
parenting skills.
On July 27, 2006, the same child was once again found walking outside. 2
The children were being cared for by an uncle because the mother had left home
and was on her way to work and the father of the three younger children was in
jail. The children were removed from their home and placed with the Department
of Human Services who put the children in the home of their maternal greatgrandmother.
On August 9, 2006, a review hearing was held and it was agreed that the
children remain temporarily in the relative placement but be returned to their
mother by August 21, 2006. The mother was to use protective daycare, and any
caretaker for the children had to be preapproved by the Department of Human
Services. It was verified that the family had installed a chain lock on their door.
The children were returned to their mother on August 21, 2006.
On September 9, 2006, the Department learned the older child was not in
school and the provider was not able to contact the family.
The court was
notified the family’s whereabouts was not known and it was believed they had left
2
The lock on the apartment door was inadequate and there was some question whether
or when the parents had asked the landlord to have it repaired.
4
the state. A protective service alert was issued and on October 24, 2006, Iowa
was notified the family had attempted to obtain food stamps in Mississippi. The
children were returned to Iowa in early November. There was no evidence the
children had suffered any harm between the time they were returned to their
mother on August 21, 2006, and their return to Iowa in early November of that
year. Once again the children were placed with their great-grandmother. At a
review hearing on November 3, 2006, there was evidence the father of the
younger children was not in contact with them because there was a warrant for
his arrest. The mother had visited the children, but she was staying with friends
and family and did not have a home for them. 3 Neither parent was employed. It
was determined to place the children in foster care and it was so ordered. On
December 21, 2006, the court found the children to be in need of assistance.
On March 1, 2007, upon the mother’s request the court ordered that the
Department have discretion to allow semi-supervised visits between the mother
and children. Apparently prior to this time the visits were totally supervised.
Meanwhile the mother, on April 13, 2007, gave birth to her fourth child and
it appears that the visits were again supervised.
On April 26, 2007, at a
mandatory review hearing, the juvenile court found the Department had made
reasonable efforts to reunify the family and no party had requested additional
services or assistance. The Department was to provide in home supervision and
parenting services to the mother, who was encouraged to find housing and
employment so that she could move to expand her visits and demonstrate the
3
It does not appear any efforts were made to assist the mother in finding a home.
5
ability to supervise the children. Visits with the children were to be as previously
ordered.
On May 3, 2007, a petition was filed to have the fourth child found to be a
child in need of assistance under Iowa Code section 232.2(6)(c)(2) (2007). An
affidavit from the worker who was assigned to the family was submitted with the
petition and related that (1) the mother and child were living with the mother’s
maternal grandparents, (2) the worker had no address for the father who had a
pending warrant for his arrest on a driving while barred charge, (3) the mother did
not have a safe and stable home and resided with relatives,4 (4) the older
children were found to be in need of assistance because a child left the parents
apartment twice as explained above,5 (4) the other children had been removed
from the grandparents’ home because they did not use a car seat for one child
and were “not providing proper nutrition to the children,” (5) there were concerns
the grandparents had allowed the mother to have unapproved contact with the
children, (6) the mother did not have a job but relied on government assistance,
the child’s father, and her grandparents to provide food and clothing for herself
and the child, and (7) the mother did not have reliable transportation and relied
on the children’s father or her grandfather for rides, which was determined to be
problematic when she needed to attend parenting classes and doctors’
appointments for this child and her other children.
4
The home where the mother resided with the children is where the Department placed
the children when they were first removed.
5
The mother was not present at the time and the children were being cared for by their
father in one instance and an uncle in another.
6
On July 19, 2007 the father of the younger children was arrested for
assaulting a woman in a car where the woman’s infant child6 was present. He
was arrested and incarcerated on several charges. On this date a temporary
removal order issued for the fourth child on a finding there was reasonable cause
to believe a request for consent would cause the parents to take flight with the
child. The child was placed in foster care.
On December 26, 2007, at a mandatory review and permanency hearing,
the juvenile court again found the Department had made reasonable efforts to
reunify the family and that no party had requested additional services.
On December 27, 2007, the fourth child was found to be a child in need of
assistance pursuant to section 232.2(6)(c)(2). The court in its order noted Sonia
Goings of the Young Parents Network testified she had no problems with the
mother’s parenting. The court noted Goings had less contact with the mother
than did Rosemary Sanford, who reported specific concerns regarding the
mother’s supervision of the children. The court further found that the mother did
not have a valid driver’s license and that since the child’s birth the mother has
lived with relatives, the mother has not maintained consistent employment, has
been charged with driving while barred, and has a fifteen-day jail sentence to
serve.
The child’s custody was placed with the Department for purposes of
family foster care.
On December 28, 2007, the petition for termination of the parental rights
that led to this appeal was filed. The State contended all parents’ parental rights
6
It is suggested this was the father’s child.
7
to the four children should be terminated under sections 232.116(1)(a), (b), (e),
(f), (h), and (l).
In a permanency review order on March 19, 2008, the juvenile court
ordered custody of the children to remain with the Department for purposes of
family foster care. The parents were ordered to submit to random urinalysis,7
and visits between the children and their parents were to remain as previously
ordered. The court found the Department had made reasonable efforts to reunify
the family.
The fifth child was born in April 2008. The mother consented to the child
going from the hospital following her birth to a foster care home. The mother was
to testify she agreed to the placement because she did not believe she had a
choice.
The petition for termination of parental rights of the four children came on
for hearing on June 3, 2008. The court heard the evidence. The court entered
an order terminating parental rights on November 25, 2008. The court found that
the mother’s parental rights should be terminated under section 232.116(1)(f) as
to the two older children, and section 232.116(1)(h) as to the two younger
children. The court found that the parental rights of the father of the oldest child
should be terminated pursuant to sections 232.116(1)(b) and (e).
The court
found the parental rights of the father of the younger three children should be
terminated. The court terminated this father’s rights to his older child pursuant to
sections 232.116(1)(b), (e), and (f), and to his two younger children pursuant to
7
This did not happen and there was surprise by one of the workers that the tests were
ordered because there was no concern that the parents were abusing drugs.
8
section 232.116(1)(h).
The mother’s appeal from this order was filed on
December 9, 2008.
REASONABLE EFFORTS. The mother contends the State did not make
reasonable efforts to reunite her with her family. She argues that because the
Department is typically given discretion by the juvenile court to decide when and
how to increase the number of visits and to decrease the level of supervision, the
Department effectively gets to decide whether parents are allowed to move
forward to reunification with their children or are forced into a holding pattern that
will inexorably result in the children being dispossessed of their parents in
termination proceedings. She argues, and we agree, that the court ultimately
must decide whether the Department, in affording visits, is making reasonable
efforts.
Reasonable efforts to reunite parent and child are required prior to the
termination of parental rights. In re M.B., 553 N.W.2d 343, 345 (Iowa Ct. App.
1996).
The core of the reasonable efforts mandate is that the child welfare
agency must make reasonable efforts to prevent out-of-home placement or to
reunify families in each case. In re H.L.B.R., 567 N.W.2d 675, 679 (Iowa Ct.
App. 1997). While efforts made by the State to reunify a family may not be
successful, this does not mean the efforts were unreasonable. Id. Visitation
between a parent and child is an important ingredient to the goal of reunification.
M.B., 553 N.W.2d at 345; see also In re S.W., 469 N.W.2d 278, 280-81 (Iowa Ct.
App. 1991).
9
The issue the mother raises was not preserved for appellate review. 8 A
challenge to the sufficiency of services should be raised at the removal or review
hearing or when the services are offered. In re L.M.W., 518 N.W.2d 804, 807
(Iowa Ct. App. 1994). While the mother contends she made requests to expand
visitation and to reduce the level of supervision, she has failed to point out in the
record where these requests were made. We recognize that the mother made a
request for semi-supervised visits that was granted and utilized, though ultimately
withdrawn. Our review of the record as set forth above indicates that the issue of
reasonable efforts was reviewed at a number of hearings where the juvenile
court found both that reasonable efforts were being made and that no further
services were requested.
The mother, to her credit, made a real effort to exercise the visitation she
was allowed. This was not always easy for her as her financial resources are
limited. She works at an hourly wage of $7.25. Visitation, however, is only one
facet of reasonable efforts to reunify families. M.B., 553 N.W.2d at 345; see Iowa
Code § 232.102(10)(a) (listing examples of reasonable efforts). The absence of
an adequate lock on a rented apartment door initially brought this family into a
child in need of assistance proceeding. While other efforts including assistance
in finding housing might have been made the mother did not request other
services to help reunify the family. We affirm on this issue.
8
Because it is required that reasonable efforts issue be raised in the juvenile court it is
important that the parent have a strong advocate there to assure that they receive the
necessary services.
10
THE
STATE
TERMINATION.
FAILED
TO
MEET
ITS
BURDEN
TO
PROVE
The mother contends that the State failed to show by a
preponderance of the evidence that the children will suffer harm in the manner
specified in section 232.2(6). Her challenge is that sections 232.116(1)(f)(4)9 and
232.116(1)(h)(4)10 have not been proved.
The parent-child relationship is constitutionally protected.
Quilloin v.
Walcott, 434 U.S. 246, 255, 98 S. Ct. 549, 554, 54 L. Ed. 2d 511, 519 (1978);
Wisconsin v. Yoder, 406 U.S. 205, 233, 92 S. Ct. 1526, 1542, 32 L. Ed. 2d 15, 35
(1972). The State has the right to terminate the legal relationship between a
parent and a child, but the Constitution limits its power to do so. Quilloin, 434
U.S. at 255, 98 S. Ct. at 554, 54 L. Ed. 2d at 519; see Meyer v. Nebraska, 262
U.S. 390, 399, 43 S. Ct. 625, 626, 67 L. Ed. 1042, 1045 (1923); In re T.R., 460
N.W.2d 873, 875 (Iowa Ct. App. 1990). The State has the burden of proving the
grounds for termination by clear and convincing evidence.
Iowa Code
§ 232.96(2); H.L.B.R., 567 N.W.2d at 677. “The issue of whether or not to legally
sever the biological ties between parent and child is an issue of grave importance
with serious repercussions to the child as well as the biological parents.”
H.L.B.R., 567 N.W.2d at 677.
The goals of child-in-need-of-assistance
proceedings are to improve parenting skills and to maintain the parent-child
relationship.
9
Id.
An underlying issue in a termination action is whether the
Iowa Code section 232.116(1)(f)(4) provides: “There is clear and convincing evidence
at the present time the child cannot be returned to the custody of the child’s parents as
provided in section 232.102.”
10
Iowa Code section 232116(1)(h)(4) provides: “There is clear and convincing
evidence that the child cannot be returned to the custody of the child’s parents as
provided in section 232.102 at the present time.”
11
parent is beyond help, but a parent does not have an unlimited amount of time in
which to correct deficiencies. Id.; see In re D.J.R., 454 N.W.2d 838, 845 (Iowa
1990).
The mother contends that the State has failed to meet its burden to prove
that the her11 parental rights should be terminated pursuant to 232.116(1)(f) and
(h).
She states that the children were specifically found to be in need of
assistance pursuant to section 232.2(6)(c)(2), which involves the failure to
exercise a reasonable degree of care in supervising the children.
She then
argues that the Department’s choice to allow only fully-supervised visits made it
difficult to make a case either way as to whether the mother would fail to exercise
a reasonable degree of care in supervising her children. She further argues that
in the limited circumstances she did a good job supervising the children and
providing activities that allowed her to interact with the children. Her position is
that the State failed to prove by clear and convincing evidence the children could
not be returned home, and juvenile court erred in terminating her parental rights.
The State’s brief provides minimal assistance to help us extract from the
record that evidence it claims supports its position there is clear and convincing
evidence to terminate the mother’s parental rights. The brief relates (1) that all
five of the mother’s children have been found to be in need of assistance, (2) that
the children are imminently likely to suffer harm as a result of the failure of the
mother to exercise reasonable supervision, (3) that the mother demonstrated
11
Her issue is stated as: “Whether the State has met its burden to prove that the
father’s rights should be terminated pursuant of Iowa Code 232.116(1)(f).” Her
argument, however, addresses termination of her rights and we consider it.
12
difficulty supervising all of her children at one time and having them respond to
her,12 (4) the fourth child, then an infant, was left alone in a bed while the mother
went outside to help the other children out of the car, (5) the same child
wandered alone out of the visitation room, (6) one provider, Thomas Bose,
testified he did not believe it would be safe to leave the children alone with the
mother for more than half an hour, (7) the mother drives without a license, (8) the
mother has a fifteen-day sentence to serve for driving without a license, (9) at the
time of the termination hearing the mother had an apartment but only had had it
for one month and, given her history of homelessness, there was no indication
she would maintain stable housing for her children, and (10) the juvenile court
found she was unable to provide for the children’s basic needs on an ongoing
basis and the situation was unlikely to change in the reasonable future.
The incident that brought this case to the attention of the Department of
Human Services was a lack of supervision by the father and the uncle. The
mother was at work or going to work when the incidents happened. The mother
and the father took the children to Mississippi when the children had been found
to be in need of assistance. They should not have left the state of Iowa with their
children. This was not a responsible move on the parents’ part and because they
12
The State cites twenty-five pages of the testimony of Susan Smith, a registered nurse
working for Young Parents Network, in partial support for this argument. The mother
voluntarily sought them out. The mother did not attend all scheduled sessions and this
was the major problem Smith had with her. The mother also responded and was open
to the assistance being provided. Smith instructed the mother when giving the children
instructions to say it once, not repeat and not raise her voice, and the mother tried to
follow the instructions and she also listened to strategies for dealing with multiple
children. When asked about the mother’s relationship with the children and the ability to
supervise all the children, the witness testified she was not qualified to make that
judgment call.
13
did so, the Department understandably lost trust in the family. However, there is
no evidence that the children suffered any harm while traveling with their parents.
The mother made a substantial effort to attend scheduled visits, bring
lunches for the children, and plan activities for them. The strongest evidence
supporting the State’s position that the mother cannot adequately supervise the
children came from Thomas Bose. Bose testified he holds a Bachelor’s Degree
in criminal justice with a minor in sociology from Northern Arizona University and
worked as a juvenile probation office for five years in Apache County, Arizona.
His interaction with the family came through his work with the Young Parents
Network at Four Oaks through its Safety and Permanency Program. Bose had
been working for the agency since September of 2007. He appears to have
gotten this case shortly after beginning his employment. His main responsibility
was visitation supervision as well as transporting the children from their foster
homes to the visitation place. The mother had two-hour visits on Mondays and
Thursdays. Bose testified she was consistent with the visits and sometimes she
would interact with the children and other times she would just watch them play.
The State specifically pointed to this part of Bose’s testimony in support of its
case:
Q. Could you recommend at this time that the visits go to
semi-supervised since she [the mother] now has her own
apartment? A. I wouldn’t feel comfortable.
Q. Why is that? A. The fact that if we’re having a visitation
in a visitation room and a child can get out of that without the
parents seeing it every time13 and not interacting every time with
13
Apparently there was an instance where the youngest of the four children started out
of the visitation room and the mother did not react for thirty seconds.
14
your children, I just don’t see it being a safe alternative for the
children.
Q. You don’t think it would be safe for them to have periods
alone with their mother? A. I think periods maybe, but an extended
period of time, no.
Q. Well, how long of a period of time do you think would be
a safe period of time? A. I’d say something—I wouldn’t say more
than like a half hour.
Q. During your observations of [the mother’s] visits, does
she have any difficulty in keeping track of all four children and
giving her attention to all four children during the visits? A. Yes.
Normally she can focus on one child. She focuses pretty well on
that one child at times. And then there’s times when she can do
very well and sit down, have two of the kids doing an activity while
interacting with the two other ones, but a lot of times she focuses
on one child in the visit while the other ones are doing their thing
and then she’ll attempt to move to the next one.
Q. Do the children initiate much interaction with their
mother? A. The oldest will initiate interaction with mom.
Bose also testified the food the mother initially brought was fast-food that
is not healthy for the children. He said the mother met with a Hy-Vee food
dietician and paid attention and he said the meals proceeded to be better and
healthier alternatives for the children.
He was asked if he had an opinion or recommendation with regard to the
State’s petition to terminate parental rights to the four children and stated his
recommendation would be for termination. When asked to state his reason he
said:
Based on lack of parenting that we’ve had, the fact that the mother
continues to drive though her license is revoked or suspended.
She is still interacting14 with the father of the three younger children,
14
The witness, when cross-examined about visitation, acknowledged among a number
of other things that at times the mother brought dinner for the children, helped the older
one complete homework, worked on the child’s spelling words with him, and got down
on the floor to play with them, and a number of times she brought books, helped a child
with speech therapy, and played games with the children.
15
she really hasn’t completed many of the objectives we set out at the
family team meeting.
In reviewing a termination case we recognize we only have the written
record and must rely heavily on the testimony of those who work with and
observe the family and as a result give their opinions a certain deference.
However, the legislature’s decision to charge us with review of termination cases
means our deference is not to be an automatic approval of what has come
before. We must not only review the evidence de novo, we must also determine,
when assessing opinions of proffered alleged experts such as Bose, whether
they actually qualify as experts and what weight should be given their opinions.
Iowa Rule of Evidence 5.702 provides:
If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to determine a
fact in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education may testify thereto in the form of
an opinion or otherwise.
Generally we look at the witness’s education, training, and experience to
determine if the witness is qualified as an expert. There was no objection made
to the admissibility of Bose’s opinion testimony, so the admission of the same is
not an issue. We still must look at the weight to give it, and in doing so do
consider his education and experience. See State v. Newell, 710 N.W.2d 6, 28
(Iowa 2006). The reliability of an expert’s opinion is for the fact finder. See State
v. Kolbet, 638 N.W.2d 653, 660 (Iowa 2001). We recognize that Bose worked as
a juvenile probation officer and minored in sociology and in the nine months prior
to his giving testimony had worked with the Department to set goals to help
families be reunited and safe in their current environment. There is no evidence,
16
however, that he has worked with young children or that he has had education or
experience in early childhood development or in parenting. We note, too, that his
observations were made in a controlled environment and involved the mother’s
interaction with her children over a very limited time.
We give them limited
weight.
We just do not find there to be clear and convincing evidence in this
record that the mother does not have the ability to supervise her children. There
is no evidence that any of the children suffered physical harm while they were in
her care. There were no concerns about the children remaining in the home
when the Department first became involved with this family. The children were
taken away after the second incident and the children were quickly returned to
her. We recognize that her ability to provide for her children is limited by her
financial resources. Her wages are inadequate to allow her to house, feed, and
clothe five children. The State does not specifically claim that not having ample
resources to care for your children is clear and convincing evidence you cannot
be a parent. Yet the fact the mother has not had resources for adequate housing
for her children has been a factor in not allowing her to take them home, and is a
factor that was considered in terminating her parental rights.
REVERSED AND REMANDED.
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