IN THE INTEREST OF S.C., Minor Child, S.E.C., Father, Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-512 / 09-0779
Filed July 22, 2009
IN THE INTEREST OF S.C.,
Minor Child,
S.E.C., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Muscatine County, Gary P.
Strausser, District Associate Judge.
A father appeals from the termination of his parental rights to his minor
child. REVERSED.
Tarek A. Khowassah of Holland & Anderson, L.L.P., Iowa City, for
appellant father.
Joan Black, Iowa City, for appellee mother.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant
Attorney General, Gary Allison, County Attorney, and Korie L. Shippee, Assistant
County Attorney, for appellee State.
Raymond Tinnian, Kalona, for minor child.
Considered by Vaitheswaran, P.J., and Potterfield and Doyle, JJ.
2
POTTERFIELD, J.
Scott appeals from the termination of his parental rights to his daughter.
Upon our de novo review, we reverse.
I. Background Facts and Proceedings.
S.C. was born in June 2007 to Scott and D.T.1 Scott and D.T. were never
married and their relationship is volatile. S.C. is D.T.‟s fifth child and Scott‟s first.
In July 2007, the family was residing in Muscatine where Scott owned and
operated a tattoo shop. On July 8, DHS initiated a child abuse investigation
concerning S.C.
Scott had been arrested for domestic abuse assault based
upon D.T.‟s allegation that he had squeezed her arm while she was holding S.C.,
which put infant S.C. at risk of being injured. D.T. told investigators that she was
walking down the stairs with S.C. and Scott was pinching her on the arm and
asking her where she was going with the child. D.T. asserted that there was a
history of domestic violence between her and Scott. The Iowa Department of
Human Services (DHS) was familiar with D.T. due to prior founded child abuse
reports concerning her other children identifying D.T. as the perpetrator (denial of
critical care due to marijuana usage, children tested positive for marijuana).2 A
no contact order issued preventing contact between Scott and D.T. However,
DHS did not seek a removal order for S.C. When Scott was interviewed on July
10, he denied that there was any domestic violence or physical confrontations
between him and D.T. The State later dismissed the charges against Scott.
1
D.T. is not a party to this appeal.
D.T.‟s four older children are no longer in her care; two live with their father, and her
parental rights to the other two were terminated in June 2007.
2
3
On July 16, 2007, DHS and three law enforcement officers made an
unannounced visit to Scott‟s place of business attempting to locate D.T and S.C.,
to follow up on information that the family was together in violation of the no
contact order. Scott and S.C. were present, D.T. was not. DHS worker, Dustin
Krueger, found Scott resistant to voluntary services, but interacting appropriately
with the infant. Krueger asked to visit Scott‟s residence (Scott indicated he was
staying in an apartment with a friend), but Scott would not agree. However,
Krueger left S.C. in Scott‟s care.
A month later, on August 17, 2007, the State filed a child in need of
assistance (CINA) petition. The petition asserted:
[D.T.] has a significant history of substance abuse, her parental
rights of two of her children have been terminated, and her current
whereabouts are unknown. Further Scott has a significant criminal
history and based on his statements it‟s the belief of the
Department of Human Services that both Scott and [D.T.] are
violating the current no contact order. There appears to be a
significant history of domestic violence between Scott and [D.T.]
and their continued contact without proper intervention is putting
the child at risk of injury.
An adjudicatory hearing was set for September 27, 2007.
Neither parent
appeared for the September 27 hearing.
On September 28, 2007, the juvenile court entered an order noting that
Scott had been personally served, but not within sufficient time to prepare for the
hearing. The adjudicatory hearing was rescheduled for October 11, 2007. The
court also ordered DHS to “locate the child and have personal contact with the
child to assure the child‟s well-being prior to the adjudicatory hearing.”
On October 2, 2007, a DHS worker spoke with Scott‟s mother in Rose Hill;
his mother said she had not seen Scott, D.T., or S.C. for three weeks. The
4
juvenile court granted DHS‟s request for an ex parte removal order. On October
3, DHS and a deputy sheriff went to Scott‟s parents‟ Rose Hill address looking for
S.C. Scott was present and stated S.C. and D.T. were not there. On October 4,
law enforcement found S.C. with D.T. in a car being driven by Scott‟s father.
S.C., then three months old, was placed in foster care.
On October 11, 2007, S.C. was adjudicated CINA based upon D.T.‟s
stipulation—through her attorney, as she was not personally present—that she
used controlled substances with Scott in the presence of the child and while
acting as a caretaker to S.C.
Scott was present at the hearing, but
unrepresented. The record does not reflect whether he objected or consented to
the adjudication and D.T.‟s admission regarding drug use. The court found the
parents‟ relationship “unstable and includes incidents of domestic violence
followed by recantations by the mother and reconciliation between the parents.”
The court found credible “[D.T.‟s] statements that Scott has used controlled
substances in the presence of the child[,]” although the statements were made by
counsel.
S.C.‟s placement in foster care was continued.
Her foster family
resided in Washington, some forty miles from Scott‟s residence in Rose Hill.3
Visitation was offered to Scott and D.T. three times a week. Scott missed
a few visits due to his work schedule or transportation issues, but he attended
nine visits4 with his daughter in Washington between October 8th and November
15th, driving more than seven hundred miles. A November 2007 report by DHS
3
An October 21, 2007 report to the court noted that Scott took employment in Sioux City
for the week of October 14th; however, he reported that he quit this job so he could have
visits with S.C.
4
On two other occasions Scott arrived in Washington more than a half-hour late and did
not get a visit with S.C.
5
social worker, Deb Schwitzer, noted that “Scott‟s interactions with [S.C.] during
the visits are very appropriate.” He was very emotional upon seeing S.C. and
informed Ms. Schwitzer that he was depressed about S.C.‟s removal.
Ms.
Schwitzer noted that Scott “has been rated as „extremely dangerous‟ on the
lethality scale.”
Criminal domestic abuse charges and the no contact order
apparently were dismissed in October 2007.
DHS recommended that Scott participate in parenting skill sessions,
participate in a mental health evaluation and follow through with any
recommendations of the evaluation, participate in a substance abuse evaluation
and follow through with any recommendations of the evaluation, participate in
anger management class, find full-time employment, and find stable housing.
On November 26, 2007, the court entered a dispositional order in which it
adopted the case plan proposed by DHS report, except the court concluded Scott
did not have to participate in anger management class, but “will work on issues of
anger management and the effects of domestic violence on the children as part
of parenting skills sessions.” The court approved S.C.‟s continued placement in
foster care in Washington, Iowa. A review hearing was scheduled for February
28, 2008.
Scott completed a mental health evaluation on December 27, 2007.
Evaluator, Mary Boles, found Scott suffered from situational depression and
might benefit from anti-depression medication; she thus recommended that he
see Dr. Kevin Sterk, a psychiatrist, for a psychiatric/medication evaluation. She
also recommended that Scott have individual therapy every two weeks or attend
a weekly men‟s group.
6
In a February 2008 report, DHS social worker Hannah Chesmore-Potts
indicated that visitation with then eight-month-old S.C. continued to be offered to
the parents three times per week. She noted:
[S.C.] appears to enjoy her time with her mom and dad which is
evidenced by: her smiles, her giggles, her napping and her eating.
Her parents lovingly and gently hold her and walk with her during
visitation. They provide [her] with special toys, blankets and books
during visitation. They have also grown to learn what foods and
snacks [S.C.] enjoys and prepare these items for her visit. . . .
When [S.C.‟s] parents attend supervised visitation they are
nurturing and thoughtful.
However, Ms. Chesmore-Potts noted that attendance at visitation by the parents
had not been consistent. She stated Scott reported that financial problems were
the main cause of his lack of attendance.
He was provided “referrals and
suggestions to assist with his current financial situation” including community
resources that “provide transportation, financial assistance and employment
counseling.” Ms. Chesmore-Potts wrote that Scott had “not been agreeable to
referrals and suggestions provided to support his participation in visitation with
[S.C.].” Scott attended thirteen visits with his child in the three months between
November 20, 2007 and February 11, 2008, driving more than 1,000 miles.
With regard to his mental health evaluation, Ms. Chesmore-Potts wrote
that Scott “reports he does not need a therapeutic intervention.”
She also
reported that Scott had yet to complete his substance abuse evaluation, even
though it had been twice scheduled. Scott explained that the cancellations were
due to financial reasons and perhaps some weather-related travel difficulties.
DHS‟s recommendations for Scott continued as before.
7
Scott submitted to a substance abuse evaluation on February 18, 2008.
The evaluator obtained a history from Scott with the information that Scott last
used marijuana in 2005 and last drank in June 2007—the date of his arrest for
domestic abuse assault. “The last he drank he had four beers at home and was
involved in a domestic violence charge that was dropped.”
Based on the
interview, the evaluator found Scott “is not recommended for substance abuse
treatment. His history does include alcohol abuse and marijuana abuse but both
drugs appear to be in remission.” Scott submitted a report to the court, with the
substance abuse evaluation attached, in which he stated that he had had two
drug tests (November and December 2007), both of which tested negative for
illegal substances. He asked that the court order a trial home placement or
transfer of S.C.‟s placement to a more convenient location.
A review order was filed on March 19, 2008. The court granted DHS‟s
request for a second psychological evaluation. The court denied the request to
move S.C., finding the current foster home “appropriately located given the
current residence of the child‟s mother and father.” The court wrote:
Scott [ ] complains he has to travel a significant distance resulting in
an enormous financial burden which impedes his ability to attend all
available visits. However, [Scott] rejects the idea of the child being
transported for visits to him or to some halfway point. The Court
recognizes that inclement weather has caused [him] to miss some
visits. However, he has missed too many visits for the Court to
grant his request for a trial home visit or unsupervised visitation.
[Scott] must consistently attend visits for at least a month and
demonstrate appropriate parenting during that time frame before
the Court is willing to order partially-supervised visits. Given the
Court‟s conclusion that partially supervised visits are not yet
appropriate, his request to return the child to his home or to his
parents‟ home is rejected.
8
The court also noted that employment and visiting one‟s child are not mutually
exclusive. It informed Scott that “[h]e must become more flexible and allow the
child to be either brought halfway to him or all the way to him on some occasions
if finances remain a factor so that visitation may progress.”
A May 27, 2008 DHS report to the court indicated that, following a family
team meeting on April 8, 2008, Scott had attended all available visits with S.C.
(one four-hour visit at his parents‟ home and one two-hour visit in a community
setting).
His visitation is described as a positive experience for [S.C.] He is
loving and nurturing with her during visitation. The Department has
also supported the involvement of Scott‟s immediate family in
visitation. Since the Family Team Meeting, Scott has missed only
one session for parenting skill building and education due to a
scheduling mix-up. He has been more proactive during skillbuilding and educational sessions. These sessions are offered
before and/or after his visitation in Washington. This renewed
desire to engage in services is a hopeful change in Scott‟s
participation with the case plan.
The completion of the psychological re-evaluation continues
to be a contentious issue for Scott. . . .
Scott and [D.T.] have greatly improved their attendance in
visitation and their attendance in services . . . . The parents provide
[S.C.] with a very positive visitation experience and extended,
paternal family members are providing healthy support by allowing
visitation to take place in their home. There is on-going concern
about the parents‟ inability and/or refusal to participate in court
ordered evaluations in a timely manner, the parents‟ unstable
relationship, and the parents‟ continued instability with housing and
employment.
The parents‟ lack of timeliness in completing
evaluations and in establishing stability is a barrier to reunification.
[S.C.] is 11 months old. She has been placed in out of home care
for 7.5 months. This social worker is unprepared to recommend
S.C. be returned to the care of her parents until the parents:
complete their court ordered evaluation(s), subsequently engage in
recommended services from the evaluation(s), and demonstrate a
pattern of stability in their living arrangements and in their
relationship.
9
Ms. Chesmore-Potts recommended that Scott participate in parenting skills
sessions, obtain a psychological re-evaluation and follow through with any
recommendations, pursue full-time employment, and find safe, stable housing.
On June 5, 2008, six months after his first evaluation and diagnosis of
situational depression, Scott completed a second psychological evaluation with
Dr. W. David McEchron, a psychologist,
[Testing] does suggest that Scott may act out on angry,
hostile feelings. At this time, he is under a great deal of distress,
which is bound to influence his day-to-day and moment-to-moment
behavior. Anger has been a problem for him in the past and
continues to be. He also recognizes that he has difficulty with
problem solving and coping with new life situations.
At this time, Scott‟s evaluation does not demonstrate the
presence of serious mental health and emotional disturbance. This
does not preclude, however, the presence of significant personality
patterns that must be addressed. Scott‟s primary problems are his
personality characteristics which include distrust of others that
borders on paranoia, poor control over his anger, and excessive
worry.
....
Medication for Scott is not recommended. Further referral
for drug and alcohol assessment cannot be made on the basis of
these test results. It is strongly believed, however, that Scott does
need ongoing psychological care. He needs the guidance of a
therapist he can trust who will assist him now and in the future.
Clearly, from DHS reports, his family has judgment problems and
does not appear to be a source of consultation that would help him
solve life‟s problems in a practical and healthy manner. He must
seek this assistance from someone. He must also put the past
behind him and continue to focus on the best interest of his child.
After a review hearing, which was held on June 26, 2008, the juvenile
court ordered Scott to comply with Dr. McEchron‟s recommendation that he
receive ongoing psychological care. The court noted that Scott had consistently
attended visits for the last two months and that they had gone well; Scott was to
continue to attend visits. The court also noted that Scott had been arrested for
10
operating a motor vehicle while intoxicated5 and possession of a controlled
substance (marijuana); the court ordered Scott to complete a new substance
abuse evaluation and to comply with any recommendations. S.C. was to remain
in foster care.
On June 27 Scott spoke with DHS workers, Ms. Chesmore-Potts and Ms.
Jackie Davis, and asked that future visits occur at his parents‟ home because he
was going to lose his driver‟s license. The workers agreed to bring S.C. to two
visits per week—one two-hour and one four-hour visit—both to occur at his
parents‟ Rose Hill home. Visits proceeded as arranged and went well from June
through September at the home of Scott‟s father, which Ms. Chesmore-Potts
described as “a safe, warm and caring environment”. Scott and D.T. lived in a
smaller house next to his father‟s home that needed repair before it would be
safe for the child, but Scott and his father planned that Scott and S.C. would
reside with Scott‟s parents when S.C. was returned to their care.
A September 2008 court report from Ms. Chesmore-Potts notes that
during the review period:
The parents are nurturing and thoughtful during visitation. They are
involved in caring for their daughter during visits: changing diapers,
preparing meals and feeding, bathing and dressing, and playing.
[The parents] do not display problematic behavior in the mechanics
of their parenting during visitation. During this review period, [the
family has] demonstrated an on-going bond.
However, Ms. Chesmore-Potts indicated that Scott had only “minimally
participated” in services: Scott was not working and reported he could not work
and have visits with his daughter and go to appointments; he had not followed up
5
His blood alcohol concentration was .163%.
11
with recommended psychological counseling—although he had appointments
scheduled, he blamed D.T. for his failure to attend; he denied having substance
abuse problems despite his recent arrest; and he had missed three scheduled
chemical dependency evaluations.6
She also indicated a concern about the
stability of the home environment, noting the many separations Scott and D.T.
experienced and D.T.‟s reports of not feeling safe in Rose Hill. Ms. ChesmorePotts recommended that the plan change from reunification to termination of
parental rights.
The guardian ad litem (GAL) also recommended termination in his
September 17, 2008 report to the court:
Scott [ ] steadfastly refused to find steady employment and
housing, continues to live largely on the charity of close family
members who are resentful of this, persists in reckless and defiant
conduct and when the consequences of his conduct become
manifest he reacts by blaming others for his problems, or giving
dishonest statements to persons involved with the case, or
attempts to manipulate or bully the caseworker or service providers.
[Scott] has set up three different dates in August and September to
obtain a Substance Abuse Evaluation and missed all three of them.
[Scott] has made no secret that he considers the DHS
recommendations irrelevant to his parenting abilities, frequently
accuses anyone involved with services of being “out to get him,”
and recently made generalized threats of violence to the
caseworker and the service provider involved with his case, i.e.: “if
they try to take away my rights I will become the monster that they
say I am.”
. . . . The contrition he expressed to the GAL after spending
his daughter‟s first birthday in jail was fleeting and immediately
replaced by his previous attitude of anger and defiance toward
caseworkers and service providers.
It is clear during visits that Scott is loving and appropriate
with his daughter, clearly loves her and cares about her, but is
constitutionally unable to address the chaotic circumstances that
gave rise to the initial adjudication.
6
Ms. Davis‟s September 4, 2008 notes indicate that she smelled marijuana when Scott
and D.T. exited their house to go to Scott‟s parents‟ house for a visit with S.C.
12
A permanency hearing was held on September 18, 2008. DHS workers
recommended termination of parental rights due to the parents‟ perceived lack of
progress.
Ms. Chesmore-Potts and Ms. Davis testified that D.T. told them
domestic violence continued in the relationship. They also testified that Scott
confronted Ms. Davis when he learned she was supporting a recommendation of
termination of parental rights. Ms. Davis testified that she no longer felt safe with
visits at the grandparents‟ home and refused to supervise future visits there. Ms.
Davis testified that D.T. stated she and Scott had been using drugs. D.T. then
testified that she did not in fact tell the workers about violence in the home or that
they were using drugs.
After the September 18 hearing, visitation was moved from Scott‟s family
home back to Washington, Iowa, based on Ms. Davis‟s refusal to supervise visits
in Rose Hill.
On September 29, 2008, Scott‟s attorney wrote to the court that Scott had
met with a mental health worker and arranged to have ongoing counseling and
had obtained a substance abuse evaluation. The substance abuse evaluation
recommended a twenty-eight day inpatient treatment program.
A permanency order was filed on October 28, 2008, in which the juvenile
court wrote:
The parents have complied with visitation. The visits go well
and it is clear the parents are bonded to the child and the child to
the parents. The parents‟ behavior is generally appropriate toward
the child during visits. However, visitation has not progressed to
unsupervised. . . .
....
. . . . It is clear Ms. Davis [a service provider] no longer feels
safe at [Scott‟s] residence. It is difficult to believe the child would
13
be safe in the home when adults do not feel safe . . . . [Scott‟s]
behavior is the result of more than the recommendation that the
Department seek termination of parental rights. [Scott] completed a
mental health evaluation which stated “anger has been a problem
for him in the past and continues to be.” . . .
. . . Based upon the lack of progress the parents have made
while this case is pending, it is unlikely that they will resolve the
issues in their relationship, gain employment, maintain stable
housing, comply with substance abuse or mental health treatment.
Thus, grant of additional time is not appropriate.
The court ordered a petition to terminate parental rights be filed and, for the first
time in the pendency of the case, ordered the parents to comply with random
drug testing at least twice a month.
Scott was told he did not qualify for in-patient treatment when he
attempted to sign in on October 20 due to his report that he had not used
marijuana for two weeks. It was recommended that he complete intensive outpatient treatment. Scott began to participate in out-patient treatment with Angela
Andeway, who recommended weekly one-on-one treatment sessions.
Scott
provided three negative UA‟s, two random UA‟s on November 17 and November
26, 2008; and another UA on January 5, 2009.
In November Scott attended one session of a ten-week reasoning skills
group that had been recommended by his mental health counselor.
After November 7, 2008, Scott did not attend scheduled visits. After the
permanency hearing in September, Scott refused to speak with Ms. Davis and
his requests for a new worker were denied.
He expressed confusion about
DHS‟s recommendation to terminate his rights having always been told that visits
were going well; he also expressed hurt and anger at DHS workers concerning
7
Angela Andeway, a certified drug and alcohol counselor for the State of Iowa, testified
at the termination trial that marijuana stays in a person‟s system for thirty days.
14
their testimony at the permanency hearing. In December Scott asked that visits
again take place at his parents‟ home. Workers would not provide in-home visits
due to stated feelings of intimidation.
Following the trial on the petition to terminate parental rights, which was
held on January 12, 16, and 21, 2009, the juvenile court terminated Scott‟s
parental rights.
In the April 13, 2009 termination order the court found the
evidence was “overwhelming that [Scott] was attempting to conceal the child
from the Department” at the beginning of these CINA adjudication proceedings.
It further found “[t]he parents‟ relationship was unstable and includes incidents of
domestic violence followed by recantations by the mother and reconciliation
between the parents” and “the instability of the relationship affects the care
provided to the child.”
The court found D.T.‟s statements that Scott used
controlled substances in the presence of the child were credible.
Scott‟s
cooperation with services other than parenting sessions and visitation had been
“problematic.”
The court noted Scott‟s visitation with S.C. was inconsistent
between October 2007 and March 2008, and consistent from a team meeting on
April 8 through November 2008. However, between November 7 and January 2,
2009, Scott did not participate in visitation. The court noted the record was
“replete with examples of [Scott‟s] failures to engage in the other services
offered” including his failure to follow through with psychological care and his
failure to acknowledge domestic abuse.
The relationship is filled with controlling, aggressive and violent
behavior perpetrated by [Scott]. The relationship has all the classic
earmarks of domestic violence . . . . The relationship is [in] the
same position as when this case started. The likelihood of the
pattern repeating and future violence between the two is extremely
15
high. If replaced in the family home the child would be subject to
adjudicatory harm including a failure to provide appropriate
supervision due to domestic violence in the presence of the child
jeopardizing the child‟s safety. The likelihood of this occurring is
very high in this case. In addition, the situation is further
exacerbated due to substance abuse by the parents.
The adjudicatory harm in this case included [Scott‟s] use of
controlled substances in the presence of the child while acting as a
caretaker for the child. [Scott] does not see a problem with the use
of marijuana. . . . In addition, he has not been honest regarding his
use of marijuana and alcohol.
The court noted that Scott testified he stopped at a bar and drank after attending
one session of the termination trial. The court concluded Scott had a severe and
chronic substance abuse problem and termination was thus appropriate under
Iowa Code section 232.116(1)(l) (2009) (child adjudicated CINA, parent has
severe, chronic substance abuse problem and presents a danger to self or others
as evidenced by prior acts, clear and convincing evidence that parent‟s prognosis
indicates child will not be able to be returned within reasonable time). The court
also concluded termination was appropriate under section 232.116(1)(h) (child
under three years of age, adjudicated CINA, removed from parent‟s care for at
least six months, and cannot safely be returned). The court rejected the ground
that Scott had failed to maintain significant contact with S.C. See Iowa Code §
232.116(1)(e).
Scott moved to amend the court‟s findings and conclusions, and to
reconsider, or grant a new trial. In support of his motion for new trial, Scott
offered the March 24, 2009 report of the foster care review board that expressed
concern that DHS had not adequately informed the parents of expectations. The
court denied the post-trial motions.
16
Scott appeals.
He argues the juvenile court should have granted his
motion to continue the termination hearing. In the alternative, he contends the
court erred in finding that: (1) reasonable reunification efforts had been made; (2)
there was clear and convincing evidence that S.C. could not be returned to
Scott‟s custody; and (3) Scott had a severe, chronic substance abuse problem.
Scott also argues the court abused its discretion in not placing S.C. with Scott‟s
father. Finally, Scott complains that the court erred in denying his motion for a
new trial.
II. Scope and Standards of Review.
We review termination proceedings de novo. In re R.E.K.F., 698 N.W.2d
147, 149 (Iowa 2005). Although we give weight to the juvenile court‟s findings of
fact, we are not bound by them. In re K.N., 625 N.W.2d 731, 733 (Iowa 2001).
The grounds for termination must be proved by clear and convincing evidence.
In re T.P., 757 N.W.2d 267, 269 (Iowa Ct. App. 2008). Evidence is clear and
convincing when it leaves no serious or substantial doubt about the correctness
of the conclusion drawn from it. In re D.D., 653 N.W.2d 359, 361 (Iowa 2002).
Our primary concern in termination cases is the best interests of the child. In re
A.S., 743 N.W.2d 865, 867 (Iowa Ct. App. 2007).
III. Analysis.
Upon our de novo review of the record we are not persuaded that there is
clear and convincing evidence supporting the termination of Scott‟s parental
rights. D.T. had been the subject of prior involvement with DHS and continued to
be the focus of DHS‟s efforts in this adjudication.
Her claimed reports of
domestic violence and substance use are the bases upon which this CINA
17
adjudication proceeded and the focus for all services recommended thereafter.
In fact, the court adjudicated S.C. a CINA based upon D.T.‟s claims, finding them
credible even though she was not at the adjudication hearing. In a subsequent
hearing where D.T. actually testified, the juvenile court specifically found that she
was not credible in her testimony. Her mental health issues8 would seem to
negate her credibility. Yet, DHS workers and the court repeatedly relied upon
D.T.‟s claims that she and Scott smoked marijuana in the presence of her
children and that Scott was violent as grounds for recommendations for Scott
and for termination of his parental rights.
While we recognize that Scott was resistant to obtaining substance abuse
evaluations, those evaluations did not indicate that he had a “severe, chronic
substance abuse problem” that would justify termination under section
232.116(1)(l).9 Rather, Scott had provided clean UAs for at least three months
prior to the termination hearing. Drug tests had not been ordered until that point
8
In August 2008 D.T. participated in a psychological evaluation with Dr. McEchron. He
reported that while D.T. has “serious mental health problems, and is undoubtedly in a
great deal of distress at this time, she is not as flagrantly psychotic as she presents
herself to be [on a psychological] test.” D.T. was diagnosed with major depressive
disorder, panic disorder without agoraphobia, polysubstance abuse in partial remission,
and personality disorder with antisocial, dependent, and schizotypal characteristics. Dr.
McEchron recommended further evaluation, medication, and psychiatric referral.
9
Section 232.116(1)(l) provides for termination of parental rights if the court finds
all of the following:
(1) The child has been adjudicated a child in need of assistance
pursuant to section 232.96 and custody has been transferred from the
child‟s parents for placement pursuant to section 232.102.
(2) The parent has a severe, chronic substance abuse problem, and
presents a danger to self or others as evidenced by prior acts.
(3) There is clear and convincing evidence that the parent‟s
prognosis indicates that the child will not be able to be returned to the
custody of the parent within a reasonable period of time considering the
child‟s age and need for a permanent home.
18
in the case.
Although Scott drove under the influence of alcohol during the
pendency of the case, and drank at a bar following a day in court, the record
does not contain clear and convincing evidence of a chronic substance abuse
problem.
His visits with S.C. were consistently found to be appropriate and he was
described as caring and nurturing. Although it is worrisome that Scott failed to
visit the child following the about-face of the recommendation of the Department,
it is not surprising that Scott expressed frustration with the recommendation that
his parental rights be terminated.
Scott contends the State did not engage in reasonable efforts to reunite
him with the child. DHS has an obligation to make reasonable efforts toward
reunification, but a parent has an equal obligation to demand other, different, or
additional services prior to the termination hearing. In re A.A.G., 708 N.W.2d 85,
91 (Iowa Ct. App. 2005). Scott repeatedly requested additional services.
Scott closed his tattoo business and moved to his family‟s home in Rose
Hill after S.C. had been removed from his care. Scott‟s parents‟ home was the
location of visitations and DHS did not voice concerns about its appropriateness
for S.C. Scott was in the process of renovating a house owned by his father for
his residence. Workers viewed the house and did not find it objectionable. He
continuously resided in Rose Hill for more than one year, but was criticized for
not having stable housing.
Because of Rose Hill‟s distance from services,
transportation was always an obstacle to both visitations and services.
The
record indicates that D.T. was repeatedly offered and given rides by DHS
workers; however, Scott was required to obtain his own transportation and was
19
criticized when he was unable to do so. Scott was also criticized for not finding
full-time employment even though it was noted that Rose Hill offered no
employment opportunities.10
We join the foster care review board‟s concern that “the expectations of
the parents were not clarified by DHS and that there were not sufficient meetings
to outline the steps that parents needed to take to achieve reunification.”
Workers did not address their asserted intimidation with Scott. They did not
provide guidance as to what types of behavior were inappropriate or
unacceptable.
We also note that workers‟ expressed feelings of insecurity
around Scott appear somewhat pretextual.11
In light of the obvious bonds
between father and daughter and the history of Scott‟s care during visitations, we
cannot conclude the evidence “leaves no serious or substantial doubt about the
correctness of the conclusion drawn from it.” In re D.D., 653 N.W.2d at 361
(citations omitted). We thus reverse the order terminating Scott‟s parental rights.
REVERSED.
10
Scott did pursue some unconventional earning opportunities: he cut and sold firewood
by the truckload, he planted a garden and intended to sell vegetables he would harvest,
he had applied for and received a small business grant to have a mobile tattoo shop (this
became a problem when he lost his license), and his father was investigating the
purchase of a building where Scott could open a tattoo shop to which his father would
provide transportation.
11
Ms. Davis claimed to feel unsafe at Rose Hill, but chose to take a trainee to that
location.
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