IN THE COURT OF APPEALS OF IOWA
No. 17-0851 Filed September 27, 2017
IN THE INTEREST OF A.S., Minor Child,
A.S., Mother, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Monroe County, William S. Owens,
Associate Juvenile Judge.
A mother appeals the termination of her parental rights. REVERSED AND
REMANDED WITH DIRECTIONS.
Robert F. Bozwell, Jr. of Bozwell Law Office, Centerville, for appellant
mother.
Thomas J. Miller, Attorney General, and Ana Dixit, Assistant Attorney
General, for appellee State.
Julie R. De Vries of De Vries Law Office, PLC, Centerville, guardian ad
litem for minor child/appellee.
Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ. 2
DOYLE, Judge.
A mother appeals the termination of her parental rights, asserting several
claims. Because we agree, based on the unique facts of the case, that a
guardianship should have been created rather than terminating the mother’s
parental rights, we reverse the juvenile court’s termination-of-parental-rights
ruling with respect to the mother. We remand the case back to the juvenile court
to enter an order transferring guardianship and custody of the child to the
maternal grandparents pursuant to Iowa Code section 232.104(2)(d)(1) (2017).
I. Background Facts and Proceedings.
A.S. is the mother and J.S. is the father of A.S., born in 2015. The family
came to the attention of the Iowa Department of Human Services (DHS) in 2016
after it was reported the child had been sexually abused. Specifically, on
February 4, 2016, the mother left the child, then about three months old, in the
care of the father, who she knew was intoxicated, for approximately two hours.
Upon [the mother’s] return home, she observed [the father] “passed out” and [the child] crying and shaking in a baby swing. [The mother] noticed blood coming from [the child’s] diaper. When [the mother] removed the diaper, she noticed injury to [the child’s] genitals. [The mother] took [the child] to the . . . hospital. Injuries were observed and [the child] was taken to Blank Children’s Hospital by ambulance. [The child] ha[d] suffered injuries from forced sexual abuse. The injuries required surgery. [The mother] made statements she didn’t want to believe the child’s father caused such injuries.
The child was removed from the parents’ care and subsequently adjudicated a
child in need of assistance (CINA).1 The child was placed in the custody of the
1 At the time of the termination-of-parental-rights hearing, the father was in prison, having been found guilty of first-degree sexual abuse and sentenced to life without the possibility of parole. His parental rights were also terminated, and he does not appeal. 3
child’s maternal grandparents, where the child has since remained.2 The mother
also moved into the maternal grandparents’ home and continued to live there
throughout the case.
As directed by the juvenile court, the mother saw a psychologist for a
mental-health evaluation in May 2016. The psychologist’s report that followed
advised:
During [the mother’s] schooling, she was in special education services and reported current reading problems. Psychological testing administered during this evaluation placed her intellectual ability in the mildly intellectually disabled/borderline range. Brief screening measures placed her reading and oral comprehension ability at the fourth grade level, with her memory ability in the low average range. . . . [S]he appeared perplexed by more conceptual, open ended questions. Background records indicate that at times she does not understand legal circumstances and the purpose of services provided to her. .... A less than ideal relationship between [the mother] and her husband, [the father], was described. She was hesitating in describing details about her husband and their relationship, but she did reluctantly acknowledge he called her names and used alcohol. Background records indicate that both of these behaviors occurred with some regularity. Despite these difficulties and the allegations of sexual abuse towards her daughter, she remains committed to this relationship and has a positive appraisal of [the father] and his parenting abilities. Background records also indicate she remains committed to the marriage, and she has visited him regularly while incarcerated. A number of concerns arose in regard to [the mother’s] ability to autonomously care for her young daughter. During this evaluation, she communicated a basic framework of appropriate parenting practices but more sophisticated practices needed further assistance and instruction. She did articulate that it was acceptable to leave her child in the care of an intoxicated individual, as she believed that individual could decide how to take care of a child. Background records indicate that she does not appear to acknowledge the seriousness of the sexual assault and believes
2 The child was placed in the maternal grandparents’ legal custody until the court entered its termination-of-parental-rights ruling, where the child was placed in the legal custody of the DHS. 4
that her husband did not carry out such behavior as he informed her of this. Background records indicate that she does appear to have a bond with her daughter, but relatives have expressed concerns about her ability to care for a young child and there have also been previous concerns about maintaining appropriate caloric intake for her daughter. In sum, [the mother] may appear well- intentioned in regard to the welfare of her daughter, but at times she does not fully appreciate the complexity of the issues and potential threats to the welfare of her daughter.
The psychologist set forth recommendations for providing the mother services “in
an attempt to bolster [her] parental capacity,” but the psychologist believed the
services could not remedy the mother’s difficulties in the long term, given her
intellectual disability. The psychologist opined the mother was “likely to require
services for a longer period of time until her daughter maturates to a level where
she can partially care for her own well-being.”
Services were provided to the mother, and the DHS case worker and
service providers attempted to tailor those services to accommodate the mother’s
difficulties as recommended by the psychologist. There is no question the
mother fully engaged in the services provided and was generally willing to do
anything asked of her for reunification, though she did continue to visit the father
in jail for many months after the start of the case. At the end of the day, the DHS
case worker and service providers did not believe the mother could safely care
for the child on her own due to her intellectual limitations. The DHS, the child’s
guardian ad litem, and the court-appointed special advocate (CASA)
recommended termination of the mother’s parental rights. Following a
termination-of-parental-rights hearing, the juvenile court agreed and terminated
the mother’s parental rights pursuant to paragraph (h) of section 232.116(1). 5
The mother now appeals that ruling. Our review is de novo. In re M.W.,
876 N.W.2d 212, 219 (Iowa 2016).
II. Discussion.
Parental rights may be terminated under Iowa Code chapter 232 if the
following three conditions are true: (1) a “ground for termination under section
232.116(1) has been established” by clear and convincing evidence, (2) “the
best-interest framework as laid out in section 232.116(2) supports the termination
of parental rights,” and (3) none of the “exceptions in section 232.116(3) apply to
preclude termination of parental rights.” Id. at 219-20. “For evidence to be ‘clear
and convincing,’ it is merely necessary that there be no serious or substantial
doubt about the correctness of the conclusion drawn from it.” Raim v. Stancel,
339 N.W.2d 621, 624 (Iowa Ct. App. 1983); see also M.W., 876 N.W.2d at 219.
The mother’s arguments on appeal are intertwined. She contends the
State failed to prove the child could not be returned to her care—the fourth
element of paragraph (h)—because the mother continued to reside with the child
in the maternal grandparents’ home and the child was safely cared for there.3
She similarly argues termination was not in the best interests of the child
because she and the child share a bond and live with the maternal grandparents.
3 Under section 232.116(1)(h), the court may terminate the rights of a parent to a child if: (1) the child is three years old or younger, (2) the child has been adjudicated a CINA under section 232.96, (3) the child has removed from the physical custody of the child’s parents for at least six of the last twelve months or the last six consecutive months and any trial period in the home has been under thirty days, and (4) “[t]here 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.” “At the present time” refers to the time of the termination hearing. See In re A.M., 843 N.W.2d 100, 111 (Iowa 2014). It is not disputed that the first three elements were met. The child was under three, was adjudicated a CINA pursuant to section 232.96, and was removed from the mother’s physical custody since February 2016. 6
She points out that guardianship was a viable alternative to termination of her
rights. She also questions whether the court should have granted her additional
time “to correct and resolve the [DHS’s] concerns,” noting her intellectual
disability hindered her ability to meet the statutory time-frame for reunification set
forth in section 232.116(1)(h) and quoting language from a federal agency
bulletin concerning working with parents with disabilities. She maintains
reasonable efforts for reunification were not provided to her and the DHS “lulled
[her] into believing that she was adequately progressing.” She concluded that
there was simply no evidence in the record to support termination of her parental
rights. While we disagree with most of these assertions, we do believe creation
of a guardianship was appropriate under the facts of the case.
First, we dismiss the mother’s claims that reasonable services were not
provided to her. Though the DHS “has an obligation to make reasonable efforts
toward reunification, . . . a parent has an equal obligation to demand other,
different, or additional services prior to a permanency or termination hearing,”
and if the parent does not make a timely request, the issue is not preserved for
our review, as is the case here. See In re C.H., 652 N.W.2d 144, 148 (Iowa
2002); In re A.A.G., 708 N.W.2d 85, 91 (Iowa Ct. App. 2005). The mother made
no such requests, and, in any event, the record demonstrates the DHS provided
adequate services in this case.
Next, a child’s protection “is one of the most well-established duties and
public policies” of this state, and, in relation thereto, it “has a duty to assure that
every child within its borders receives proper care and treatment, and must
intercede when parents fail to provide it. Both [the DHS] and the juvenile court 7
have the important function of protecting children who are in need of assistance.”
In re A.M., 856 N.W.2d 365, 376 (Iowa 2014) (alterations, internal citations, and
quotation marks omitted). “[L]ower mental functioning alone is not sufficient
grounds for termination,” but it is a relevant consideration if it affects the child’s
well-being. A.M., 843 N.W.2d at 111; see also In re Wardle, 207 N.W.2d 554,
563 (Iowa 1973) (“Ordinarily, mental disability in a parent does not operate in a
vacuum so far as the best interest and welfare of his child is concerned but is
usually a contributing factor in a person’s inability to perform the duties of
parenthood according to the needs of his child.”).
It is true that the mother did not sexually assault the child and could not
foresee the child would be so assaulted by the father, but that is not the issue.
The record reveals that even after the DHS became involved, the mother still did
not recognize the danger of leaving her child with someone who was intoxicated.
The mother did not believe—or did not want to believe—the father did what he
did, despite the evidence before her. She even continued to express a desire for
her and the child to be in his life after the assault. These positions call into
question the mother’s overall decision-making ability, her ability to recognize
threats to ensure the child’s safety, and her ability to put the child’s needs before
her own. The mother’s statements, coupled with everyday issues that existed at
the beginning of the case when she was on her own, like whether she was
properly feeding the child or understood she needed to continuously monitor the
child’s diaper situation, is evidence that the child could not be safely returned to
the mother’s care on her own, and we do not find any evidence in the record that
the situation can be improved with additional services and time. There is no 8
doubt that the mother loves the child and wants to be a good caregiver, but the
record simply does not show that the mother has the ability to do it by herself.
Ultimately, the mother seems to concede that, with her parents’ help, she
is able to safely care for the child. Though this is a close call, for the following
reasons, we agree with the mother that a guardianship should have been
established. And in doing so, we are not critical of the juvenile court, for we have
said time and time again that a guardianship is not a legally preferable alternative
to termination. See, e.g., In re N.M., No. 17-0054, 2017 WL 1088119, at *3 (Iowa
Ct. App. Mar. 22, 2017) (citing In re L.M.F., 490 N.W.2d 66, 67-68 (Iowa Ct. App.
1992)); In re S.C., No. 15-1912, 2016 WL 903029, at *4 (Iowa Ct. App. Mar. 9,
2016) (same); In re K.B., No. 15-1685, 2016 WL 146707, at *4 (Iowa Ct. App.
Jan. 13, 2016) (same); In re C.B., No. 14-0704, 2014 WL 3513241, at *2 (Iowa
Ct. App. July 16, 2014) (same).
After a termination-of-parental-rights hearing, a number of options are
available to the juvenile court. See Iowa Code § 232.117. If the court finds the
grounds for termination alleged were not established, it must dismiss the
termination-of-parental-rights petition. See id. § 232.117(2). If the court
determines “facts sufficient to sustain the petition have been established,” the
court can either “order parental rights terminated” or it can “adjudicate the child to
be a [CINA] and . . . enter an order in accordance with the provisions of
section . . . 232.104.” Id. § 232.117(3), (5).
Section 232.104(2)(d) sets forth several permanency options for the
child’s placement, including transferring “guardianship and custody of the child to
a suitable person” or transferring “custody of the child to a suitable person for the 9
purpose of long-term care.” See id. § 232.104(2)(d)(1), (3). However, the
placements enumerated in paragraph (d) can only be ordered if the court first
finds that convincing evidence exists showing termination of the parent-child
relationship is not in the child’s best interests and that the child could not be
returned to the child’s home even though “[s]ervices were offered to the child’s
family to correct the situation which led to the child’s removal.” Id.
§ 232.104(3)(a)-(c).
“As in all juvenile proceedings, our fundamental concern is the best
interests of the child.” In re K.N., 625 N.W.2d 731, 733 (Iowa 2001). In deciding
what is in the child’s best interests, we follow the framework established in
section 232.116(2), giving “primary consideration to the child’s safety, to the best
placement for furthering the long-term nurturing and growth of the child, and to
the physical, mental, and emotional condition and needs of the child.” See also
In re P.L., 778 N.W.2d 33, 37 (Iowa 2010). But, “[e]ven though the court may
determine that termination is appropriate under section 232.116(2), the court
need not terminate a parent’s parental rights if any of the circumstances
contained in section 232.116(3) exist.” Id. These circumstances include a
relative having “legal custody of the child” or a determination that termination of
the parent’s parental rights would be detrimental to the child because of the
closeness of the parent-child relationship. See Iowa Code § 232.116(3)(a), (c);
see also A.M., 843 N.W.2d at 113.
During the CINA case, the DHS case worker and the case service
providers, including the CASA and guardian ad litem, voiced no concern with the
child’s placement in the legal custody of her maternal grandparents. At a 10
service-provider meeting at the end of August 2016, concurrent placement
options for the child were discussed, including creating a guardianship with the
maternal grandparents. Despite the child’s placement with the maternal
grandparents, where she and the mother had lived since February 2016, the
DHS recommended that the concurrent placement option be termination of
parental rights and adoption of the child, rather than creation of a guardianship,
should reunification efforts fail. Notably, the DHS caseworker, the service
provider, and CASA each noted in their reports at that time that the maternal
grandparents had said they believed the mother was capable of caring for the
child on her own. The maternal grandparents had even stated that the mother
was the primary caregiver of the child in their home. Nevertheless, there was no
suggestion at that time that the child was not safe in the care of the maternal
grandparents nor was it recommended that the child be placed elsewhere.
At the May 2017 termination-of-parental-rights hearing, no specific safety
concerns were identified about the child’s placement with the maternal
grandparents. The CASA testified she believed the child was safe with the
maternal grandparents with supervision by the court and the DHS, but she
expressed there was “emotional turmoil” in the maternal grandparents’ home that
she believed was detrimental to the child. Although the CASA had not requested
a change in the child’s placement during the case, the CASA at the termination-
of-parental-rights hearing questioned the child’s safety with the maternal
grandparents, testifying she knew “there was some abuse” in the maternal
grandparents’ home in the past. However, the social history report stated neither
grandparent had “a history of any mental health or criminal behaviors.” 11
Additionally, the maternal grandparents’ home had been approved for placement
following a home study.
Generally, permanency orders are not preferred over the termination of
parental rights. See L.M.F., 490 N.W.2d at 67-68 (citing In re M.W., 458 N.W.2d
847, 850 (Iowa 1990) (“Although Iowa Code section 232.116(2) suggests that the
primary consideration in termination cases is ‘the physical, mental, and emotional
condition and needs of the child,’ the legislature, in cases meeting the conditions
of section 232.116(1)(e)(1), (2), and (3) (1989), has made a categorical
determination that the needs of a child are promoted by termination of parental
rights.” (emphasis added)). But see In re S.J., 451 N.W.2d 827, 832 (Iowa 1990)
(“Termination is an outcome of last resort.”). But based upon the facts of the
case, including the placement of the child with the maternal grandparents for
more than a year without incident or safety concerns, we do not find the child’s
best interests are served by termination of the mother’s parental rights. This is
not a case where the child’s future placement will remain in limbo if the mother’s
parental rights are not terminated. The maternal grandparents have been there
for the child all of her life and there is no indication that would change if the
mother’s parental rights are terminated. Similarly, the child’s stability and long-
term interests will not be affected if the mother’s rights are not terminated and a
guardianship is created. See also, e.g., Josh Gupta-Kagan, The New
Permanency, 19 U.C. Davis J. Juv. L. & Pol’y 1, 12 (2015) (“Empirical research
has demonstrated that options which do not require terminations lead to
caregiving relationships that last just as long as traditional adoptions. This
continuum of equally permanent options suggests that moving to permanency 12
should not by default require terminations.”); Randi Mandelbaum, Re-Examining
and Re-Defining Permanency from a Youth’s Perspective, 43 Cap. U. L. Rev.
259, 259-60 (2015) (“Federal and state laws mandate that efforts be made to find
permanent families for all children placed in foster care, first, by reunifying them
with their birth families or, when this is not possible, by securing alternate families
through adoption or guardianship.” (emphasis added)).
The mother and child love each other and share a close bond. The child
also shares a close bond with her maternal grandparents. We agree the
evidence shows the mother cannot care for the child alone, but this case is not
an ordinary case where there is no parental involvement or addiction issues to
overcome. See, e.g., A.M., 843 N.W.2d at 111 (noting the case did “not present
any of the usual precursors to termination of parental rights, such as physical or
emotional abuse of the child, substance abuse by one or both parents, domestic
abuse, parental criminal conduct, or even overt neglect”). This child has a
mother that loves her, grandparents in her life, and, at the time of the termination-
of-parental-rights hearing, the child was happy and flourishing in the maternal
grandparents’ care.
Upon our de novo review, considering the matters directed by Iowa Code
section 232.116(2), we conclude termination of the mother’s parental rights is not
in the child’s best interests. We also find that two exceptions under section
232.116(3)—specifically paragraphs (a) and (c)—apply to negate the need for
termination of the mother’s parental rights under the facts of this case. We
therefore remand the case back to the juvenile court to enter an order
transferring guardianship and custody of the child to the maternal grandparents 13
pursuant to Iowa Code section 232.104(2)(d)(1). The juvenile court should
review this order annually as mandated by section 232.104(7)(a), or more often if
needed, to ascertain “whether the best interest of the child is being served.”
Alternatively, the juvenile court may close the CINA case and transfer
“jurisdiction over the child’s guardianship to the probate court” as described in
section 232.104(7)(b). We affirm in all other respects, and we do not retain
jurisdiction.
REVERSED AND REMANDED WITH DIRECTIONS.
Vaitheswaran, P.J., concurs; Bower, J., dissents. 14
BOWER, Judge (dissenting).
I respectfully dissent. I would affirm the termination of the mother’s
parental rights, finding that termination is in the long-term best interests of the
child.
I take no issue with the cases cited by the majority and the holding of each
case as it relates to those with special needs and those who need additional
services in becoming better parents, but I do take issue with the underlying facts
of this case and the future stability this child will have if the mother’s parental
rights are not terminated.
The child’s mother is described by those who have interviewed, treated,
and counselled her as able to read and understand conversational English at a
fourth grade level. The mother is committed to a relationship with the father of
the child, who is serving a life sentence for sexual abuse in the first degree for
assaulting the child, who was an infant at the time and required several surgeries
to repair the child’s anus and genitals. The abuse occurred after the mother left
the child with the father, who she knew to be drunk. She continues to believe it is
acceptable to leave a child with an intoxicated person as that individual could
decide how to take care of the child. The mother continues to see the father
while he is incarcerated and minimizes his actions. She has even advised others
that she does not believe the father committed the offense or at least not to the
degree of seriousness with which others have shared. These few statements,
directly attributable to the mother, convince me that the majority is wrong.
According to the treatment professionals, after specifically tailoring services to 15
the mother, she can still not care for the child due to her intellectual limits and her
beliefs shared above.
What would normally be a termination of parental rights has now become
a guardianship with the maternal grandparents. We have continually held and
have said time and time again that a guardianship is not a legally preferable
alternative to termination. See, e.g., In re N.M., No. 17-0054, 2017 WL 1088119,
at *3 (Iowa Ct. App. Mar. 22, 2017) (citing In re L.M.F., 490 N.W.2d 66, 67-68
(Iowa Ct. App. 1992)); In re S.C., No. 15-1912, 2016 WL 903029, at *4 (Iowa Ct.
App. Mar. 9, 2016) (same); In re K.B., No. 15-1685, 2016 WL 146707, at *4 (Iowa
Ct. App. Jan. 13, 2016) (same); In re C.B., No. 14-0704, 2014 WL 3513241, at *2
(Iowa Ct. App. July 16, 2014) (same). To their credit, the maternal grandparents
have helped with the child. However, I cannot look past statements directly
attributable to them that their daughter can safely parent this child. In addition to
other challenges in their household, including odd working hours and a special-
needs adult son who requires regular help, they continue to advocate for their
daughter to raise this child on her own at some point in the future. While their
statements show loyalty and encouragement, I question their own decision-
making. The longer the time the child has with the mother, the more difficult
termination will be on all parties, as the bond between all will grow stronger.
Instead of establishing a guardianship in this matter requiring continued
efforts, supervision, and court intervention, the child deserves a fresh start with
an adoptive family who will provide her with a normal childhood she so deserves,
as opposed to providing services to the mother and child until such a time that
the child can become more independent.