IN THE INTEREST OF T.C., Minor Child, J.D., Mother, Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-824 / 09-1169
Filed November 12, 2009
IN THE INTEREST OF T.C.,
Minor Child,
J.D., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Wayne County, Sherman Phipps,
Judge.
A mother appeals the termination of her parental rights. REVERSED.
Amanda M. Demichelis of Demichelis Law Firm, P.C., Chariton, for
appellant mother.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant
Attorney General, and Alan M. Wilson, County Attorney, for appellee State.
Patrick Greenwood, Lamoni, for minor child.
Considered by Vaitheswaran, P.J., Eisenhauer and Potterfield, JJ.
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POTTERFIELD, J.
I. Background Facts and Proceedings
Judy is the biological mother of Timothy, who was eleven years old at the
time of trial. Timothy came to the attention of the Iowa Department of Human
Services (DHS) in June of 2007 when Judy asked for help controlling Timothy’s
aggression. Timothy was diagnosed with attention deficit disorder, oppositional
defiant disorder, and mild mental retardation.
On June 12, 2007, all parties
stipulated to adjudication of Timothy as a child in need of assistance, noting he
was at risk of physical injury at home because of his out-of-control behaviors. On
June 13, 2007, DHS founded a report of child abuse against Timothy’s maternal
grandmother, Kathy.
However, Timothy’s adjudication as a child in need of
assistance was not related to the report against his grandmother. DHS advised
Judy that Kathy was not to be around Timothy without supervision.
Following the June 12 adjudication, Timothy was placed at Youth
Emergency Services and Shelter until he was discharged on September 10,
2007. He was allowed a brief visit home and was then placed at Four Oaks
Treatment Center on September 12, 2007.
Timothy excelled during his
placement at Four Oaks, and he experienced no major problems. Timothy was
discharged from Four Oaks on February 13, 2008, and was placed in foster care,
pending completion of a home study to determine suitability of placement in
Judy’s home.
Judy had struggled to find stable housing for herself. In April of 2008,
Judy began counseling, which she attended regularly. Judy also found a home,
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where she was allowed unsupervised visits with Timothy. Timothy spent every
other weekend with Judy, unsupervised, until September of 2008.
Timothy’s foster family, who provided Timothy with a stable home, moved
approximately three hours from Judy’s home in June of 2008. In October of
2008, Timothy began to see a counselor.
Judy reluctantly agreed to allow
Timothy to take medication to help him stay on task.1
improvement as a result of these measures.
Timothy showed
Timothy became involved in
extracurricular activities and showed considerable academic progress. He was
better able to concentrate at school and to decrease his need for a one-on-one
aide during the school day from full time to only three hours per day.
In September of 2008, Chuck Allen, an in-home counselor with Children
and Families of Iowa, stopped by Judy’s home during an unsupervised visit with
Timothy. When Allen arrived, Kathy was in the home, and Judy asked Allen not
to report this fact to anyone. DHS had been willing to reunify Judy and Timothy
in September of 2008 until these concerns about Judy’s contact with her mother
arose. DHS workers suspected Kathy was living with Judy. Judy and Kathy
denied living together for a time, but eventually admitted Kathy was living in
Judy’s home. Judy testified that she subsequently asked Kathy to move out,
which Kathy did.
In the beginning of 2009, Judy showed improvement. Allen noted that
Judy was implementing properly the parenting skills he had taught her, but was
concerned she did not completely follow through in every situation.
1
Allen
The record shows Judy was concerned the medicine would worsen an underlying heart
problem Timothy had. After being assured Timothy could safely take the medicine, Judy
agreed to allow Timothy to take the medicine.
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reported that Judy’s home was adequate and had improved greatly since he first
became involved in the case.
Allen also reported improvement after Kathy
moved out of Judy’s home, as this allowed Judy to parent Timothy on her own.
In May of 2009, DHS was considering allowing Timothy to have extended
visits through the summer to determine whether Judy could successfully parent
Timothy. Before these plans could be finalized, Timothy’s foster family told DHS
they were planning to move to Colorado in June of 2009. After receiving this
information, the DHS worker assigned to this case, Krista Hickie, reported that
this case should not be prolonged any further and recommended the termination
of Judy’s parental rights. Hickie noted that Timothy had been out of Judy’s home
since June 12, 2007, and that Judy had not had unsupervised visitation since
September of 2008.
Following a two-day trial, on August 4, 2009, the juvenile court terminated
Judy’s parental rights to Timothy pursuant to Iowa Code section 232.116(1)(f)
(2009). Judy appeals, arguing the juvenile court erred in: (1) finding the State
established by clear and convincing evidence that Timothy could not be returned
to Judy’s care; and (2) finding a termination of Judy’s rights was in Timothy’s best
interests.
II. Standard of Review
We review proceedings to terminate parental rights de novo.
In re
Dameron, 306 N.W.2d 743, 745 (Iowa 1981). We review the facts as well as the
law and adjudicate parents’ rights anew. Id. We give weight to the findings of
the juvenile court, particularly with respect to the credibility of witnesses, but are
not bound by them. In re L.L., 459 N.W.2d 489, 493 (Iowa 1990). Grounds for
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termination must be proved by clear and convincing evidence. In re J.E., 723
N.W.2d 793, 798 (Iowa 2006).
III. Statutory Requirements
Section 232.116(1)(f) provides that termination is appropriate when: (1)
the child is four years of age or older; (2) the child has been adjudicated a child in
need of assistance; (3) the child has been removed from the physical custody of
the child’s parents for at least twelve of the last eighteen months; and (4) there is
clear and convincing evidence that at the present time the child cannot be
returned to the custody of the child’s parents. Iowa Code § 232.116(1)(f). The
first three elements are not disputed.
Further, the court need not terminate the parent-child relationship if the
“child is over ten years of age and objects to the termination.”
Iowa Code
§ 232.116(3)(b). Hickie noted that Timothy’s answers were inconsistent when he
was asked with whom he wanted to live. Understandably, the child talked about
wanting to go home to his mother, but sometimes stated that he wanted to stay
with his foster parents. The record shows that Timothy had a strong bond with
both Judy and his foster parents.
However, after a review of the record, we agree with Judy that the State
failed to establish by clear and convincing evidence that Timothy could not be
returned to her. The guardian ad litem report to the court filed on May 12, 2008,
stated Timothy should stay in foster care placement until Judy was able to: (1)
provide a safe, clean, and stable home for Timothy; (2) properly parent and
discipline Timothy; and (3) keep Timothy safe from all forms of abuse. The
record indicates Judy has met all of these goals. Judy maintained safe, clean,
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and stable housing for an extended length of time. While Judy’s home was
initially full of debris, she greatly improved the condition and cleanliness of the
home. Allen’s reports show that Judy was making progress in learning how to
better parent Timothy and was implementing the skills she had been taught. The
juvenile court order acknowledges that the bond between Judy and Timothy was
“good” and acknowledges that Judy “attempted to comply with services directed
by the case plan.” Although Judy was dishonest about her mother’s presence in
2008, she eventually asked her mother to leave and testified that she has not
since allowed her mother around Timothy.
Further, DHS reports indicate that in May of 2009, DHS was considering
allowing Timothy extended visits with Judy. In its May 5, 2009 report, the Foster
Care Review Board recommended a continuance of the termination so that
Timothy could have a trial home visit with Judy. No one disputes the quality of
care provided by Timothy’s foster family, however “[c]ourts are not free to take
children from parents simply by deciding another home offers more advantages.”
In re C. and K., 322 N.W.2d 76, 81 (Iowa 1982) (internal quotations omitted).
The State has not met its burden of proving by clear and convincing evidence
that Timothy cannot be returned to Judy at this time. Because we find the State
has not proved the statutory grounds for termination, we need not address Judy’s
argument that termination is not in Timothy’s best interests.2
REVERSED.
2
The mother’s brief provided the court with information outside of the record. In
reaching our conclusion, we did not consider facts that were not a part of the record.
See Rasumssen v. Yentes, 522 N.W.2d 844, 846 (Iowa Ct. App. 1994) (“We do not
address issues . . . based on information not contained in the record.”).
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