IN THE INTEREST OF P.L., Minor Child, O.L.-V., Father, Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-672 / 09-1036
Filed September 17, 2009
IN THE INTEREST OF P.L.,
Minor Child,
O.L.-V., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Woodbury County, Mary Jane
Sokolovske, Judge.
A father appeals the termination of his parental rights to his child.
REVERSED.
Matthew R. Metzgar of Rhinehart Law, P.C., Sioux City, for appellant
father.
Thomas J. Miller, Attorney General, Janet L. Hoffman and Kathrine Miller
Todd, Assistant Attorneys General, Patrick Jennings ,County Attorney, and David
Dawson, Assistant County Attorney, for appellee State.
Jessica Noll, Sioux City, for mother.
Marchelle Denker of Sioux City Juvenile Office, Sioux City, for minor child.
Gerald Denney, Niobrara, Nebraska, for Santee Sioux Nation.
Considered by Vogel, P.J., and Potterfield and Doyle, JJ.
2
POTTERFIELD, J.
A father appeals the termination of his parental rights to his child, P.L.1 He
argues that the State failed to prove that termination is in the child’s best
interests.2 We reverse.
I. Background Facts and Proceedings.
P.L. was in her mother’s custody from her birth in May 2007 until she was
removed on December 26, 2007.
On that evening, authorities received a
complaint that P.L. and her mother were in a stranger’s home and that her
mother had passed out there. Earlier in the evening, the mother reportedly was
drunk and assaultive while P.L. was in her care.
An emergency removal hearing took place on January 3, 2008.
The
mother did not appear. P.L. was placed in the care of her maternal grandmother.
The father, O.L.-V., appeared at the hearing and requested counsel. He
has appeared at every court hearing from that date, with the assistance of an
interpreter, and worked actively to gain custody of his then eight-month-old
daughter. The court notes that O.L.-V. was not married to the child’s mother, but
is identified as the father on the child’s birth certificate. He has signed a paternity
affidavit3 and paid support for P.L. No other person claims to be the biological
father of the child.
On January 22, 2008, the court adjudicated P.L. as a child in need of
assistance on the basis of an “indication” that the parents had a history of
1
The mother has not appealed the termination of her parental rights to P.L.
He does not raise the issue whether the statutory grounds for termination have been
proved.
3
Paternity testing was ordered, but not completed.
2
3
domestic violence and a finding that both parents had drug/alcohol related
arrests. The mother did not appear. O.L.-V. appeared at the hearing, requested
continued visitation, and “advised that he was receptive to any in-home or
parenting services.”
Although visits between the father and child were established, and the
father was “receptive to provider suggestions in conducting his visitation,” few
visits took place because the grandmother did not cooperate. In February 2008,
the Santee Sioux Tribe requested permission to intervene, alleging that P.L. is an
“Indian child” as defined by the Indian Child Welfare Act (ICWA).4 That same
month, the grandmother took P.L. out of state, where she apparently was joined
by P.L.’s mother. The grandmother asked for child support from O.L.-V. and for
a paper giving her custody of the child. O.L.-V. refused to sign the paper and
continued to work toward obtaining custody of the child.
In April 2008, the child’s mother was located in Idaho, where she had
given birth to another child, also fathered by O.L.-V. P.L. was with her mother.
Idaho authorities removed both children from the mother’s care, and P.L. was
transported back to Iowa and placed in family foster care. She remained in a
non-adoptive foster home at the time of trial.
A permanency/review hearing took place August 26, 2008, at which time
Iowa Department of Human Services (DHS) representatives reported that the
father “had difficulty following through with simple parenting skills,” and refused to
give the name of a roommate.
4
The record was re-opened and the hearing
25 U.S.C. § 1903(4) (2008) defines an “Indian child” as “any unmarried person who is
under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for
membership in an Indian tribe and is the biological child of a member of an Indian tribe.”
4
reconvened on October 16, 2008, at the father’s request to allow him to present
evidence of his progress in parenting skills since the August hearing.
The
progress reportedly resulted at least partially from a change in the format of
parenting instruction from critical comments to a classroom setting.
The
progress report of September 17, 2008, describes an occasion when O.L.-V.
attended an emergency room visit with P.L. when she was suffering from an ear
infection. The provider observed O.L.-V. tried “to keep [P.L.] calm in the waiting
room,” was “calm and careful in his interactions with [P.L.],” and “asked questions
about [P.L.]’s health.”
The court’s October 2008 order states that the care coordinator reports “a
little and slow progress” on the father’s part, and that he was more comfortable
with his daughter in visits and had “responded appropriately” to quizzes on
parenting DVDs. The court’s order further grants the tribe’s motion to intervene
and finds that both state and federal ICWA applied to the case.5
The State filed its petition for termination of parental rights in November
2008. On November 21, 2008, a family case plan authored by Robin Garroway6
reported that O.L.-V. has taken:
more of a parental role with [P.L.] He is also using the skills he has
been taught regarding parenting. [The father] brings home-made
meals to the visits for [P.L.] to eat as he is concerned that she eat
healthy foods. The provider report is very descriptive about how
[O.L.-V.] and [P.L.] play together and how [the father] tries to teach
P.L. new things. Previously, [the father] has been embarrassed
5
See generally In re N.N.E., 752 N.W.2d 1, 6-12 (Iowa 2008) (discussing Iowa and
federal ICWA); In re A.E., 572 N.W.2d 579, 580-85 (Iowa 1997) (discussing enactment
and applicability of federal ICWA). The applicability of the ICWA is not disputed on
appeal.
6
Garroway was the DHS case manager for P.L. The family case plan was based, in
part, upon the report of the in-home service provider.
5
and did not want to be laughed at thus he was more reserved in his
interactions with [P.L.] Now he is less concerned with what others
think and is constantly amazed by how intelligent his child is. He
encourages her in activities and praises her when she is able to
follow directives. Overall the provider notes that [the father] has
shown remarkable improvement as a parent.
The report goes on to state that “[the father is using more appropriate
hygiene habits when he is with [P.L.]” and “has demonstrated appropriate
protective capacities when interacting with her.” The visits between O.L.-V. and
P.L. were taking place in his home and the report notes that O.L.-V. was taking
steps to obtain his own residence. The report states there is a “close bond”
between P.L. and her father, that P.L. “does enjoy interacting with him and does
initiate much of this interaction.” However, the report states that its author is not
certain “if [the father] wants to be a full time parent or if he just wants [P.L.]
placed with his father and step mother.”
According to the same report, the mother had convinced the juvenile court
in Idaho to return the younger child to her care and the parties anticipated a
dismissal of that juvenile court case. The report states the intention of DHS to
ask that P.L. be placed in the care of the mother.
Despite its previously-filed petition for termination of parental rights, the
State7 filed a “Motion to Modify Permanency Order,” requesting a transfer of
P.L.’s care to her mother on January 13, 2009. The stated basis for the motion
was the belief of DHS that P.L.’s best interests would be served by a return to
her mother, who had completed services in Idaho, and had passed a preliminary
home study.
7
The State appears to distinguish its pleadings from those of the DHS, while filing both
over the signature of the county attorney.
6
Also in January, the Santee Sioux Nation moved to transfer jurisdiction to
the tribe, a motion resisted by the father and overruled by the court on the basis
of his resistance. See In re A.E., 572 N.W.2d at 582 (noting that ICWA, 25
U.S.C. § 1911(b) gives veto power over transfer to either parent). The State’s
motion to modify was set for hearing on April 14, 2009.
As of January 16, 2009, the State, DHS, and the parents all appeared to
believe that the termination petition would not proceed to trial. DHS increased
the father’s visitation with P.L. “to determine if he would be able to parent [P.L.]
on a full-time basis to try to reunify.” The increased visits included two overnights
a week. The father was still cooperating with services and learning how to bathe
the child more thoroughly.
He had obtained his own apartment, which was
inspected monthly. The reports from the in-home provider described a home that
was fairly clean, although there was an instance when a kitchen knife was on the
floor, and another when the father was yelling out the window to “two cute girls”
while P.L. was in the apartment. The father continued to work, to pay child
support for P.L., and to carry health insurance for her.
On March 9, 2009, the mother arrived back in Iowa with the younger child.
DHS arranged two supervised visits with P.L.─the first time she had seen P.L.
since the child was removed from her care in Idaho a year earlier. DHS arranged
for both parents to spend time with both children, bringing the two parents
together. Garroway testified at the termination trial that “we made arrangements
for the parents to get together at the visits so they could try to come up with a
plan to co-parent their kids, so they could communicate.” Garroway thought the
mother then returned to Idaho on March 10. However, another supervised visit
7
with both children and both parents was arranged by the in-home provider for
March 11 at the father’s apartment. The in-home provider conducted drop-in
visits at the father’s apartment on March 13, 14, and 17. Garroway testified that
she planned to ask for a trial home placement for P.L. with her father.
However, an incident on March 18, 2009, changed DHS’s opinion
regarding P.L.’s mother and father. Garroway testified at the termination trial
about the incident, based on information she received from the in-home provider
and police reports. She testified that O.L.-V. went to the in-home provider’s8
house when he discovered that an incident occurred at his apartment on the
night of March 17 and the early morning hours of March 18, while he was at work
and P.L. was being cared for by a foster family. He reported to the provider that
he was scared, and that the mother had stayed in his apartment. He said the
mother had started drinking at about noon the previous day before he left for
work.9 The mother had friends in the apartment the night before while the father
was at work; there was drinking and a stabbing, and windows were broken. The
father found out about it the next day and “kicked the mother out,” according to
Garroway’s testimony at trial. Although the younger child was with the mother in
the apartment during this event, P.L. was with her foster parents. The in-home
provider learned in the course of the investigation of the event that the father and
mother had married on March 16 or 17.
8
The provider speaks Spanish, and the father communicated primarily with her, since he
otherwise required a translator.
9
The father is employed at BPI in production and, at that time, worked from 9:30 p.m. to
5 a.m.
8
Garroway testified at the termination trial that DHS was concerned that
O.L.-V.’s home was in disarray after the overnight visits, with coins and a closed
Aleve bottle on the floor where P.L. might pick them up. However, she went on
to say that DHS was not concerned with the father’s housekeeping or general
parenting issues. The father’s previous alcohol use had not been a problem
during the case, although DHS had not received formal verification that O.L.-V.
had completed all of his substance abuse treatment. “It turned into judgment
issues.”
Garroway further testified that this incident represented a “huge relapse”
for the mother during which she had placed her younger child in a dangerous
situation. As to the father, Garroway’s opinion was:
We’ve been working with [the father] for over a year, and
very slow progress on parenting skills. He does, you know, pick
things up. He wants to learn. That is—that is for sure. There’s no
disputing that.
However, [the father] needs a parent himself. He has very
poor decision-making skills. If he doesn’t have somebody teach
him these things, he doesn’t know them. And right now he’s taught
how to parent an infant and a small toddler. He doesn’t know how
to parent a three-year-old, a four-year-old, a six-year-old, a
teenager.
Once again, the mother was not present in court for the termination trial.
The father was present and testified at length on direct examination and was
cross-examined by all parties. He testified that he is twenty-six years old, a
permanent resident of the U.S., and has his green card. His father and stepmother live in the same city as he. O.L.-V. testified that he spoke with P.L.’s
mother on the phone several times after the hearing in January 2009 about
getting back together and raising their children.
He testified he thought this
9
would help them both get the children back. He said that he had the paperwork
from Idaho indicating the mother was not drinking, and she seemed different to
him when he saw her at the arranged visits. They married on March 16, and
stayed together that night and until he went to work on March 17.
The father further testified that when he came home the next morning, he
saw broken glass and blood in the common area of the apartment building. The
mother was asleep on the couch in his apartment, and he could not wake her.
He fixed a bottle for the younger child and put her in the child’s bed he had for
P.L. When the mother awoke, she brought people over to the apartment, and the
father refused to open the door. The mother was “making a scene, knocking on
all the doors,” and she told the father she was going to call the police.
The father testified that he then left his apartment and went to the home of
his in-home provider and asked her to help him. The provider and the father
called the police, and learned about the details of the assault that occurred in the
father’s apartment the night before.
The father asked the court to re-establish his visits with P.L. He testified
that he wanted to earn her custody. He also testified that he had “learned to
love” P.L., a phrase that concerned the court. 10 He said that he would “need to
look for a better place” for P.L. if the court granted him custody. He went on to
say he could keep P.L. safe, but would need some help “because she’s still being
too little, and I don’t want to have any problems in the future.” When pressed,
10
The father testified through an interpreter. The transcript reveals disagreement
among the interpreters in the courtroom, one translating for O.L.-V. and one translating
for the court and the lawyers, about the translation of the father’s testimony.
10
the father testified that he had had too little time in visits with his daughter to
know everything he would want to know to parent her full time.
In terminating the father’s parental rights to P.L., the district court found:
[O.L.-V.] has made attempts to try to understand how to
raise his child. While he does show a grasp of basic fundamentals,
such as feeding and bathing [P.L.], he has not shown an ability to
logically put these lessons into effect to insure the safety and
development of his child. He has not demonstrated he knows
enough about child development to be effective at parenting [P.L.]
as she grows older . . . . [O.L.-V.] is easily talked into doing things
that most logical people would hesitate to do and makes poor
choices, as evidenced by his sudden marriage to [the mother], thus
placing [P.L.] at risk of harm. [O.L.-V.] will always need assistance
in parenting, not just financially, but educationally and emotionally.
[O.L.-V.] testified that he has “learned to love” [P.L.] over the “last
few months.” An additional period of time and continued services
to “teach” him to “love” his daughter, when he has already had over
a year, is not likely to be of benefit.
A month later, in ruling on the State’s application to enlarge the findings
required by ICWA, the court found, “This court concludes beyond any reasonable
doubt that [P.L.] would suffer serious physical and/or emotional injury should she
be returned to the custody of her parents.”
II. Discussion.
We review termination of parental rights de novo. In re Z.H., 740 N.W.2d
648, 650-51 (Iowa Ct. App. 2007). Because the child is an “Indian child”, the
provisions of Iowa Code chapter 232 governing children in need of assistance
are modified by the ICWA. In re A.E., 572 N.W.2d at 581.
Even when the statutory grounds for termination are met, the decision to
terminate parental rights must reflect the child’s best interests. In re M.S., 519
N.W.2d 398, 400 (Iowa 1994). When we consider the child’s best interests, we
11
look to the child’s long-range as well as immediate best interests. In re C.K., 558
N.W.2d 170, 172 (Iowa 1997). In addition, the ICWA provides,
No termination of parental rights may be ordered . . . in the absence
of a determination, supported by evidence beyond a reasonable
doubt, including testimony of qualified expert witnesses, that the
continued custody of the child by the parent . . . is likely to result in
serious emotional or physical damage to the child.
25 U.S.C. § 1912(f); see also Iowa Code § 232B.6(6)(a) (2009). We “afford a
rebuttable presumption that the best interest of a child is served when custody is
with the natural parents.” In re N.M., 491 N.W.2d 153, 156 (Iowa 1992).
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).
Upon our de novo review, we find the court’s conclusions are not
supported by evidence beyond a reasonable doubt that continued custody11 of
the child by the parent is likely to result in serious emotional or physical damage
to the child. See In re J.W., 528 N.W.2d 657, 662 (Iowa Ct. App. 1995) (noting
heightened burden of proof where ICWA applies).
It is clear that the mother was the focal point of the initial involvement of
DHS and the reunification efforts that were made.
DHS and the court were
prepared to return P.L. to the mother’s custody—even after a year’s absence.
The record supports a finding that, once the mother relapsed, placement with the
father was not seriously considered.
However, DHS and its provider, who knew the father and his abilities best,
informed the court that he was progressing in his parenting abilities, that P.L. had
11
See In re Vaughn R., 2009 WL 1846510, PP19-29 (Wis. Ct. App. 2009) (discussing
and rejecting claim that “continued custody” in 25 U.S.C. § 1912(f) means that the parent
must have physical custody of the child).
12
a “close bond” with her father, and that there was no concern regarding his basic
parenting abilities.12
And even in the absence of other concerns about the
father’s ability to keep P.L. safe and to provide a nurturing home for her, the court
found that P.L. was endangered by her father’s decision to marry her mother
without informing DHS. While the parents’ decision to marry may have seemed
whimsical, these parents had been fighting with the State for a year for custody
of their children. On the brink of success, they apparently believed that being
married would help their cause. The father testified they had talked on the phone
about getting married between January (when the tide of opinion turned in their
favor) and March (when the mother returned to Iowa for her first visit with P.L. in
a year).
The case manager testified that the father was nervous or
uncomfortable about seeing the mother again, and DHS arranged for a family
visit on two separate days, involving both parents and both children. The father
testified that he married the mother because the courts had scheduled P.L. to go
with her, and he thought it was a way for both parents to have P.L. On crossexamination, the father testified he no longer planned to stay married to the
mother. He also testified that communication with the mother was difficult, since
she does not speak Spanish. He explained in his testimony that the mother told
him she wanted a divorce in the aftermath of the events of March 18, 2009.
Under these circumstances, the decision to marry cannot be a sufficient basis for
12
On the other hand, the court emphasized the father’s lack of information about raising
P.L. as she grew older. Many a first-time parent might recognize themselves in the
description of the court, and be concerned—as this father was—that they would need
help and age-specific information as their child matured.
13
a finding of danger to the child if returned to the father. It is not evidence beyond
a reasonable doubt to justify severing the family ties between father and child.
Nor are we willing to place weight on the father’s choice of words in his
translated testimony that he had “learned” to love his daughter. Although the
phrase may not be employed by parents living with their children from birth, this
father had a different experience. His year-long journey to earn the chance to
raise his daughter involved much effort at learning on his part, including learning
his daughter’s nature and spirit in the limited time offered to him in visits.
In light of the obvious bonds between father and daughter and the history
of O.L.-V.’s care during visitations, his desire to learn to be a better parent, and
his growing success at that endeavor, we conclude there was not evidence
beyond a reasonable doubt supporting the termination. We thus reverse the
order terminating O.L.-V.’s parental rights.
REVERSED.
Doyle, J. concurs. Vogel, P.J., dissents.
14
VOGEL, P.J. (dissenting)
I respectfully dissent.
This appeal is about the best interests of P.L., not whether the State
proved the allegations in the petition to terminate the father’s parental rights.
Those findings were not appealed. Nonetheless, our de novo review of the trial
exhibits and testimony should confirm that the father was not in a position to
safely parent P.L., and termination was in P.L.’s best interests. The various DHS
reports, as well as the testimony of DHS worker Robin Garroway, detail the
progress the father has made, but also record grave concerns as to his ability to
care for P.L.
At trial, when asked if P.L. could be returned to her father’s
custody, Garroway answered:
No. . . . We’ve been working with [the father] for over a year, and
very slow progress on parenting skills. He does, you know, pick
things up. He wants to learn. That is — that is for sure. There’s no
disputing that.
However, [he] needs a parent himself. He has very poor
decision-making skills. If he doesn’t have somebody teach him
these things, he doesn’t know them. . . . And if nobody’s there to
help him, he will make some critical judgment issues just as he has
shown when he’s left to make his own decisions that he has been.
Very poor decision.
....
[P.L.’s] waited the majority of her life for her parents to
become parents. She — it would not be fair to her to continue to
wait for permanency in her life. She can’t safely return to her
parents at this time, and I couldn’t even predict if it would ever be
possible.
The father’s rights were terminated pursuant to Iowa Code sections
232.116(1)(d), (child CINA for physical or sexual abuse (or neglect),
circumstances continue despite receipt of services; (h) (child is three or younger,
child CINA, removed from home for six of last twelve months, and child cannot
15
be returned home); and (i) (child meets definition of CINA, child was in imminent
danger, services would not correct conditions).
On appeal, the father does not claim that the State failed to prove by clear
and convincing evidence that the statutory basis for the three code sections
noted above was not satisfied. Rather, he claims termination was not in P.L.’s
best interests. Iowa Code section 232.116(3) provides in relevant part:
The court need not terminate the relationship between the parent
and child if the court finds any of the following:
....
(c) There is clear and convincing evidence that the termination
would be detrimental to the child at the time due to the closeness of
the parent-child relationship.
P.L. was removed from her mother’s home on December 26, 2007 when she was
only seven months old. Other than a few overnight visits with her father, P.L. has
never been in his care. The DHS Family Case Plan dated April 6, 2009, details
the progress the father has made, along with some setbacks, in his learning how
to safely parent P.L. and provide her a home. The report included this troubling
statement:
The provider has been working for months on teaching [the father]
common sense skills and healthy decision making skills. [The
father] himself still requires ongoing parenting as he has never
been taught or he has not retained what he was taught regarding
life, relationship, or judgment skills growing up.
....
[P.L.] deserves to have permanency in her life now rather than
continuing to wait for her parents to grow up and live healthy lives.
We have previously noted, “[a]t some point, the rights and needs of the
child rise above the rights and needs of the parents. The legislature, through
section 232.116 directs us to that point.” In re J.L.W., 570 N.W.2d 778, 781
(Iowa Ct. App. 1997).
Iowa Code section 232.116(3) is permissive, not
16
mandatory. In re J.L.W., 570 N.W.2d 778, 781 (Iowa Ct. App. 1997). It is within
the sound discretion of the juvenile court, based upon the unique circumstances
before it and the best interests of the child, whether to apply this section. Id.
Little in this record points to any bond between this young child and her father;
however, even a strong parent-child relationship is not an overriding
consideration in determining whether to terminate rights, but merely a factor to
consider. In re N.F., 579 N.W.2d 338, 341 (Iowa Ct. App. 1998) Although the
father has made an effort to learn how to parent P.L., those efforts were found by
the district court to be lacking, such that the statutory basis to terminate his
parental rights were proved by clear and convincing evidence.
As those findings were not challenged on appeal, and as contemplated in
Iowa Code section 232.116(3) there is little evidence of a bond that would
override those findings, the termination should be affirmed. The best interests of
P.L. call for permanency. She has waited long enough, and the tenuous bond
between parent and child is not such that the termination of parental rights
should be reversed. See In re L.L., 459 N.W.2d 489, 495 (Iowa 1990) (stating
that children simply cannot wait for responsible parenting). I would affirm the
district court.
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