In the Interest of G.B., Minor Child, K.B., Father, L.R., Mother

• Court: Court of Appeals of Iowa
• Decided: November 26, 2014
• Docket: 14-1516
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 14-1516 Filed November 26, 2014

IN THE INTEREST OF G.B., Minor Child,

K.B., Father, Appellant,

L.R., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Rachael E. Seymour,

District Associate Judge.

A father and mother appeal separately from the order terminating their

parental rights. REVERSED ON BOTH APPEALS AND REMANDED.

Andrew Tullar of Tullar Law Firm, P.L.C., Des Moines, for appellant father.

Stephie N. Tran, Des Moines, for appellant mother.

Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant

Attorney General, John P. Sarcone, County Attorney, and Christina Gonzalez,

Assistant County Attorney, for appellee State.

Erin E. Mayfield of the Youth Law Center, for minor child.

Considered by Danilson, C.J., and Doyle and Tabor, JJ. 2

DANILSON, C.J.

A mother and father separately appeal from the order terminating their

parental rights to their child, G.B. We are compelled by the record to reverse the

termination of both the mother’s and the father’s parental rights. The juvenile

court did not make the findings required to terminate under Iowa Code sections

232.116((1)(d), (e), or (l) (2013). Because the court did not find G.B. was abused

or neglected prior to the child-in-need-of-assistance adjudication; the parents did

not fail to maintain significant and meaningful contact with G.B.; and both the

State and the court quoted an outdated version of section 232.116(1)(l) and did

not make the proper finding of a “severe substance-related disorder,” the

terminations cannot stand. We reverse the termination of the mother’s and

father’s parental rights and remand for further proceedings.

I. Background Facts and Proceedings.

G.B. was born in March 2010. The family first came to the attention of the

Iowa Department of Human Services (DHS) in September 2013, due to the

parents’ use of methamphetamine and a registered sex offender being

apprehended in the parents’ home. The father was arrested for violation of

probation for continued use of drugs and incarcerated on September 5, 2013,

during the child protective assessment. G.B. was temporarily removed from the

mother’s care.

On October 23, 2013, a combined removal and adjudication hearing was

held. G.B. was adjudicated a child in need of assistance (CINA) pursuant to

Iowa Code sections 232.2(6)(b), (c)(2), and (n). The court found removal from

the parents’ care was still necessary because “parents’ unresolved substance 3

abuse, father is on probation and has not complied with the probation

requirements, mother has allowed a registered sex offender and other individuals

who use methamphetamine to be around the child.” The court also noted that

the mother “has an extensive history of using meth, mother tested positive for

methamphetamine [on September 13, 2013],” and the “[f]ather has used

methamphetamine and is incarcerated and unavailable at this time.”

The mother started outpatient drug rehabilitation at House of Mercy on

October 15, 2013. She ended treatment on November 21, 2013, and, by her

own admission, immediately relapsed using both marijuana and

methamphetamine. She entered a residential treatment program at MECCA on

November 22, 2013. Meanwhile, the father remained incarcerated at a

correctional facility.

The court held an uncontested dispositional hearing on November 26,

2013, in which it confirmed G.B. was a CINA and maintained the child’s

placement with the foster family and legal custody with DHS.

The State filed a petition to terminate both the mother’s and father’s

parental rights to G.B. on March 7, 2014. The court held a hearing on the

petition over three dates: May 20, May 28, and June 20, 2014.

At the time of hearing, the mother was twenty-nine years old. She testified

she began using alcohol at age twelve, marijuana at age thirteen, cocaine at age

sixteen, and methamphetamine at age seventeen. She and the father had been

involved in a relationship for approximately ten years. During that time, they had

a history of using together, sometimes as often as daily. The mother attended

multiple rehabilitation programs during the pendency of the case and relapsed 4

multiple times. She admitted regularly using both marijuana and

methamphetamine from January 17 to March 7, 2014. During that time, the

mother had continued to visit G.B. and did not report her use to DHS or her

therapist. She had since completed an inpatient rehabilitation program and had

moved back to the home from which G.B. was removed. She had obtained a

part-time job and was hoping to buy a car in the future. She testified that she

was still in a relationship with the father although both still needed to work on

their individual issues and sobriety. She was receiving supervised visits with

G.B. and attending therapy.

The father, who was also twenty-nine at the time of the hearing, testified to

a similar past of addiction. He began using marijuana at age twelve, alcohol at

age thirteen, cocaine at age fifteen, and methamphetamine at age fifteen. He

testified he had last used on September 1, 2013, right before he was

incarcerated for violation of his probation. The father had spent most of the

pendency of the case incarcerated or in Fort Des Moines. He moved in with his

grandmother after he was released and stays with the mother in his former

residence on Friday and Saturday nights. He had obtained full-time employment

and continued to engage in therapy, although he did not believe it was

necessary. He also received supervised visits with G.B. Like the mother, he

testified his intention was to remain in a relationship with the mother even though

they had used drugs together in the past and he was advised to avoid such

friends. 5

The court filed an order terminating both the mother’s and the father’s

parental rights on August 31, 2014, pursuant to Iowa Code sections

232.116(1)(d), (e), and (l).

The mother and father appeal.1

II. Standard of Review.

Our review of termination decisions is de novo. In re P.L., 778 N.W.2d 33,

40 (Iowa 2010). We give weight to the juvenile court’s findings, especially

assessing witness credibility, although we are not bound by them. In re D.W.,

791 N.W.2d 703, 706 (Iowa 2010). An order terminating parental rights will be

upheld if there is clear and convincing evidence of grounds for termination under

section 232.116. Id. Evidence is “clear and convincing” when there are no

serious or substantial doubts as to the correctness of the conclusions of law

drawn from the evidence. Id.

III. Discussion.

A. Section 232.116(1)(d).

Under Iowa Code section 232.116(1)(d), the juvenile court may terminate

parental rights to a child only when “[t]he court has previously adjudicated the

child to be a child in need of assistance after finding the child to have been

physically or sexually abused or neglected” or another child in the family has

been adjudicated “after such a finding.” Iowa Code § 232.116(1)(d)(1) (emphasis

added). “Physical abuse or neglect” and “abuse or neglect” are terms of art in

1 In the future, we urge appellants to comply with Iowa Rule of Appellate Procedure 6.201(1)(e)(2), which states, “[T]he appellant[s] shall attach to the petition on appeal a copy of [t]he petition for termination of parent rights and any amendments to the petition [and t]he order or judgment terminating parental rights . . . .” 6

this context. In re J.S., 846 N.W.2d 36, 41 (Iowa 2014). “Within chapter 232,

‘physical abuse or neglect’ and ‘abuse or neglect’ means ‘any nonaccidental

physical injury suffered by a child as the result of the acts or omissions of the

child’s parent, guardian, or custodial or other person legally responsible for the

child.’” Id. (citing Iowa Code § 232.2(42)).

In the CINA adjudication order, the juvenile court recited issues with the

parents’ history of drug use, the fact that a registered sex offender was allowed in

the home, and the father’s incarceration. The court did not make any findings

regarding nonaccidental physical injury suffered by G.B. Our supreme court has

concluded it is not sufficient to cite the parents’ history of drug use for the

proposition that the child has suffered physical injury or is imminently likely to do

so to terminate under section 232.116(1)(d). See J.S., 846 N.W.2d at 41–42

(“[W]e do not believe general statements about methamphetamine addiction are

enough by themselves to prove that a child is imminently likely to suffer physical

harm . . . .”); see also § 232.2(6)(b). Although addiction to methamphetamine

may be sufficient to establish that a child has suffered or is imminently like to

suffer “harmful effects” as a result of the parents’ failure to exercise reasonable

care in supervising the child, that only allows the court to adjudicate the child a

CINA under 232.2(6)(c). A CINA determination under 232.2(6)(c) may not lead

to termination of parental rights under section 232.116(1)(d) because section

232.116(1(d) requires a nonaccidental physical injury. J.S., 846 N.W.2d at 41.

Because the juvenile court did not adjudicate G.B. a CINA pursuant to

Iowa Code section 232.2(6)(b) after finding him to be physically or sexually

abused or neglected or another child in the family to be physically or sexually 7

abused, the termination of the mother’s and father’s parental rights may not be

premised upon section 232.116(d).

B. Section 232.116(1)(e).

Under Iowa Code section 232.116(1)(e), the juvenile court may terminate

parental rights to a child only if “[t]here is clear and convincing evidence that the

parents have not maintained significant and meaningful contact with the child

during the previous six consecutive months and have made no reasonable efforts

to resume care of the child.” Iowa Code § 232.116(1)(e)(3). “Significant and

meaningful contact” is defined within the section as “the affirmative assumption

by the parents of duties encompassed by the role of being a parent,” including,

but not limited to “financial obligations . . . continued interest in the child, a

genuine effort to complete the responsibilities prescribed in the case permanency

plan, a genuine effort to maintain communication with the child, and . . .

establish[ing] and maintain[ing] a place of importance in the child’s life.” Id.

The parents have regularly attended visits with G.B. The mother attends

as many as three visits a week with the child. The father has attended fewer

visits recently because of the difficulty of scheduling with his full-time job, but he

has spent time weekly with G.B. since being released to Fort Des Moines in

January 2014. Additionally, the father testified he called and talked to G.B.

weekly during the time he was incarcerated. The parents have purchased G.B.

toys and are responsible for snacks and meals during visits. The child’s therapist

testified that G.B. is bonded with both parents. Pursuant to the permanency

plan, both parents have obtained jobs and have completed an addiction

rehabilitation program. We acknowledge there have been instances when the 8

mother has made inappropriate comments to the child and in front of the child.

The statements, while inadvisable, did not prevent the mother from having

significant and meaningful contact with G.B.

G.B.’s parents have had difficulties to overcome and had their share of

setbacks but now show some signs of progress. Notwithstanding their past

difficulties, both the mother and father have maintained significant and

meaningful contact with G.B. Upon our de novo review, the termination of the

mother’s and father’s parental rights under section 232.116(e) has not been

established by clear and convincing evidence.

C. Section 232.116(1)(l).

Under Iowa Code section 232.116(1)(l), the juvenile court may terminate

parental rights to a child only if “the parent has a severe substance-related

disorder and presents a danger to self or others as evidenced by prior acts.”

Iowa Code § 232.116(1)(l)(2).

The State alleged and the juvenile court found that both of the parents

have a “severe, chronic substance abuse problem.” That language was from the

pre-2012 version of section 232.116(1)(l)(2). In 2011, the legislature amended

this provision, replacing the phrase “severe, chronic substance abuse problem”

with “severe substance-related disorder.” See 2011 Iowa Acts ch. 121 § 58

(effective July 1, 2012). In the same enactment, the legislature defined

“substance-related disorder” as “a diagnosable substance abuse disorder of

sufficient duration to meet diagnostic criteria specified within the most current

diagnostic and statistical manual [DSM] of mental disorders published by the

American psychiatric association [APA] that results in a functional impairment.” 9

Id. § 26 (codified at Iowa Code § 125.2(14)). It is no longer sufficient for the court

to assess in lay terms whether the parent suffers from “a severe, chronic

substance problem.” The definition of substance-related disorder requires

consideration of diagnostic criteria from the DSM–5.

Both the State’s petitions for termination and the court’s ruling relied on

outdated statutory language. The court did not make a finding the mother or the

father had a severe substance-related disorder as required by the current version

of section 232.116(1)(l)(2), nor has the State suggested any such evidence

exists. Accordingly, the termination of the mother’s and father’s parental rights

under section 232.116(l) has not been established by clear and convincing

evidence.

IV. Conclusion.

After reviewing these petitions on appeal, we have four options for

disposition; we may affirm or reverse the order, remand the case, or set the case

for briefing. Iowa R. App. P. 6.205. We do not have the option of substituting our

own judgment or supplementing the order of the juvenile court. See id. Because

the State has not established a ground to terminate the parental rights of either

parent, we need not address the challenges under sections 232.116(2) and (3).

We reverse on both appeals and remand for further proceedings.

REVERSED ON BOTH APPEALS AND REMANDED.