IN THE COURT OF APPEALS OF IOWA
No. 15-1256 Filed October 14, 2015
IN THE INTEREST OF M.W. and Z.W., Minor Children,
R.W., Mother, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Woodbury County, Julie A.
Schumacher, District Associate Judge.
A mother appeals from a juvenile court order terminating her parental
rights to two children. AFFIRMED IN PART AND REVERSED IN PART.
David A. Dawson, Sioux City, until withdrawal, then Theresa Rachel of
Deck Law, L.L.P., Sioux City, for mother.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant
Attorney General, and Dewey Sloan, County Attorney, for appellee.
Michelle Hynes, Sioux City, for father.
Molly Joly of Vakulskas Law Firm, P.C., Sioux City, attorney and guardian
ad litem for minor children.
Considered by Doyle, P.J., Bower, J., and Miller, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015). 2
MILLER, Senior Judge.
Rebekah is the mother and Michael the father of Z.W. and M.W. (“the
children”).1 Z.W. and M.W. were born in March 2012 and April 2013 respectively
and thus were three and two years of age at the time of a May 2015 termination
of parental rights hearing. Rebekah appeals from a July 2015 juvenile court
order terminating her parental rights to the children. (The same order terminated
Michael’s parental rights to the children, and he has not appealed.) Rebekah
also appeals orders in the underlying child in need of assistance cases. We
affirm the termination of Rebekah’s parental rights to M.W., and reverse the
termination of her parental rights to Z.W.
On April 29, 2014, the children were removed from parental custody
pursuant to an ex parte removal order. They were placed in the legal custody of
the Iowa Department of Human Services (DHS) in whose legal custody they
have thereafter remained. The State filed a child in need of assistance (CINA)
petition on May 1, 2014, and an amended petition the next day.
The circumstances surrounding the children’s removal are summarized in
the juvenile court’s findings of fact in the June 2, 2014 order following the May
29, 2014 combined temporary-removal hearing and hearing on the State’s child
in need of assistance (CINA) petition. Those findings are as follow:
[M.W.] and [Z.W.] initially came to the attention of the [DHS] on or about April 29, 2014, when Father, Michael [], reported he woke up at noon to find infant [L.W.] with his eyes open, unmoving, and indicative of something being wrong. Mother was not at home
1 Rebekah and Michael were also the parents of L.W., born in March 2014 and one-and- one-half months of age at the time of his death on April 29, 2014, as discussed hereafter. 3
at the time. The Father did not call 911. He did make a subsequent call to a relative of [L.W.] at approximately 2:00 p.m. Several hours after the Father discovered [L.W.], he was taken to the hospital in a filthy condition with sores under his neck and reeking of urine and feces. The hospital indicated he had been dead for approximately four hours. [L.W.] was approximately two months old at the time of his death. Based on the condition of the deceased infant, law enforcement proceeded to the residence of the parents to check on the safety of [M.W. and Z.W.]. Exhibit STATE011 is a record of various photos, portraying the condition of the home at the time of the arrival of law enforcement. The living conditions of [M.W. and Z.W.] and the now deceased infant, [L.W.], were deplorable. The conditions, which will be described by this court as unimaginable, portray feces, garbage, cat hair, and rotting food engulfing the residence. Garbage is stacked throughout the home. The floor of the residence is littered with garbage and cigarette butts. There are bottles of alcohol within the children’s reach littered about the living room area. The bathroom area is filthy with toilet bowl cleaner clearly accessible to the children. The three young children’s sleeping area is essentially a room with three cribs placed tightly together. The floor area surrounding those cribs is mounded with dirty diapers covered with gnats and flies. The cribs are extremely dirty. There are bugs in the refrigerator/freezer. Both [Z.W. and M.W.’s] hair stat tests were positive for illegal substances. Deceased baby [L.W.’s] hair stat test tested positive for amphetamines, methamphetamine, cannabinoids, carboxy-THC, and native THC. Law enforcement officers report a stench from outside of the apartment. The mother reports substance abuse issues by both parents.
As noted in the juvenile court’s order terminating parental rights, L.W.’s autopsy
report noted that L.W.
had a “wizened” appearance with skin tenting and sunken eyes, further noting failure to thrive with all growth parameters below the fifth percentile. The report further noted contusions and abrasions on the 2-month-old infant’s hands, further noting the post-mortem chemistry was consistent with severe dehydration. The report indicated the cause of death as malnutrition and dehydration due to neglect, with manner of death being homicide.
The State’s CINA petition and amended petition alleged the children were
in need of assistance pursuant to Iowa Code sections 232.2(6)(b) (2013) (child 4
whose parent has physically abused or neglected the child, or is likely to abuse
or neglect the child), 232.2(6)(c)(2) (child who has suffered or is imminently likely
to suffer harmful effects as a result of the failure to the child’s parent to exercise
a reasonable degree of care in supervising the child), and 232.2(6)(n) (child
whose parent’s mental capacity or condition, imprisonment, or drug or alcohol
abuse results in the child not receiving adequate care).
The juvenile court’s June 2, 2014 order found the children to be “children
in need of assistance pursuant to Iowa Code sections 232.2(6)(b), (c)(2), and
(n),” the grounds alleged in the State’s petition. The court’s July 7, 2015 ruling
ordered Rebekah’s parental rights to Z.W. and M.W. terminated pursuant to Iowa
Code sections 232.116(1)(d) and (i), and further ordered her parental rights to
M.W. terminated pursuant to section 232.116(1)(h).
On appeal Rebekah contends, among other things, that the juvenile court
erred in terminating her parental rights pursuant to Iowa Code sections
232.116(1)(d) and (i). She argues, as she did in the juvenile court, that the
record does not contain clear and convincing evidence supporting an essential,
required element of each of those two provisions.
Our review of a termination of parental rights proceeding is de novo. In re
P.L., 778 N.W.2d 33, 40 (Iowa 2010). We are not bound by the juvenile court’s
findings of fact, but we give them weight, especially when considering credibility
of witnesses. Iowa R. App. P. 6.904(3)(g); In re C.B., 611 N.W.2d 489, 492
(Iowa 2000). Grounds for termination of parental rights must be proved by clear
and convincing evidence. In re J.E., 723 N.W.2d 793, 798 (Iowa 2006). “‘Clear 5
and convincing’ means there are no serious or substantial doubts as to the
correctness [of the] conclusions of law drawn from the evidence.” C.B., 611
N.W.2d at 492 (citing Raim v. Stancel, 339 N.W.2d 621, 624 (Iowa Ct. App.
1983)).
Our review of child in need of assistance proceedings is de novo. We review both the facts and the law, and we adjudicate rights anew. Although we give weight to the juvenile court’s factual findings, we are not bound by them. 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) (citations omitted).
In order to terminate parental rights pursuant to Iowa Code section
232.116(1)(d) the court must find, among other elements, that:
The 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 as the result of the acts or omissions of one or both parents, or the court has previously adjudicated a child who is a member of the same family to be a child in need of assistance after such a finding.
Iowa Code § 232.116(1)(d)(1). Somewhat similarly, in order to terminate
parental rights pursuant to Iowa Code section 232.116(1)(i) the court must find
that “[t]he child meets the definition of child in need of assistance based on a
finding of physical or sexual abuse or neglect as a result of the acts or omissions
of one or both parents.” Iowa Code § 232.116(1)(i)(1). “Sexual abuse means the
commission of a sex offense as defined by the penal law.” Iowa Code
§ 232.2(49). The record contains no finding, and no evidence, that either of the
children was sexually abused, and sexual abuse is not involved in any of the
three provisions pursuant to which the children were adjudicated CINA.
“‘Physical abuse or neglect’ or ‘abuse or neglect’ means any nonaccidental 6
physical injury suffered by a child as the result of acts or omissions of the child’s
parent . . . .” Id. § 232.2(42). Rebekah argues, as she did in the juvenile court,
that the record contains no evidence that either of the children suffered a
“nonaccidental physical injury.”
In finding that the children had suffered such a nonaccidental physical
injury, the juvenile court cited and relied upon the deplorable living conditions in
the home the children had shared with their parents, and the death of baby L.W.
We do not believe that the living conditions themselves, as deplorable as they
were, constitute a “nonaccidental physical injury” to Z.W. or M.W. We readily
agree with the court that baby’s L.W.’s death through parental neglect and
resulting malnutrition and dehydration constitutes a most serious “nonaccidental
physical injury.” However, the terms “the child” in section 232.116(1)(d)(1) and
“[t]he child” in section 232.116(1)(i)(1) refer to a child who is a subject of the
termination proceeding. L.W. is not. Further, although L.W. is a “member of the
same family” as Z.W. and M.W., see section 232.116(1)(d)(1), nothing in the
record indicates L.W. was ever adjudicated a CINA.
We agree with Rebekah that termination of her parental rights to the
children pursuant to sections 232.116(1)(d) and (i) cannot stand. We therefore
reverse that part of the juvenile court’s ruling and order. Because those two
provisions are the only grounds relied on by the juvenile court for termination of 7
Rebekah’s parental rights as to Z.W., we reverse the termination of her parental
rights to Z.W.2
Because the juvenile court’s rulings dealt with both Z.W. and M.W., our
subsequent discussion often refers to “the children.” However, because we have
concluded termination of Rebekah’s rights to Z.W. must be reversed, the
remainder of our decision relates solely to issues concerning M.W.
Upon their removal on April 29, 2014, the children’s physical custody was
placed in family foster care with nonrelatives, subject to DHS supervision. About
four months later, in the CINA proceeding, Rebekah sought modification to
change legal custody of the children from the DHS to Rebekah’s maternal aunt
and the aunt’s spouse. Following a hearing, the court denied her request. As of
January 2015 the aunt and spouse had completed an adoptive home study and
were approved and licensed as foster parents. In February 2015, the children’s
physical custody was placed with the aunt and spouse, as potential adoptive
parents.
Additional facts will be noted in discussion of Rebekah’s remaining
numerous contentions of juvenile court error.
2 We have considered whether we may on appeal, if that ground has been proved by the evidence, terminate Rebekah’s parental rights to Z.W. pursuant to section 232.116(1)(h), a ground pled by the State but not relied on by the juvenile court. The State apparently neither filed an Iowa Rule of Civil Procedure 1.904(2) motion seeking modification of the court’s ruling to order termination pursuant to section 232.116(1)(h) as to Z.W., nor cross-appealed seeking appellate review of the court’s failure to find that termination as to Z.W. was proved pursuant to that provision. We conclude that under these circumstances, we cannot on appeal order termination of her rights to Z.W. See In re A.R. et al., 865 N.W.2d 619, 629-33 (Iowa Ct. App. 2015) (holding that where the State neither filed a rule 1.904(2) motion nor cross-appealed, we may not terminate on a ground not relied on by the juvenile court). 8
Rebekah contends the juvenile court erred in allowing the court appointed
special advocate (CASA)/guardian ad litem (GAL) for the children to present an
oral report to the court during closing arguments at the October 9, 2014
conclusion of the hearing on Rebekah’s motion to modify disposition. The
juvenile court made clear that it allowed the CASA/GAL to “make closing remarks
and recommendations,” which would not be considered as evidence. We agree
with the State that a GAL, as a representative of the children, was properly
allowed to make closing argument. We find no error in the court allowing the
CASA/GAL to make closing argument, including recommendations concerning
the motion before the court.
Rebekah contends the juvenile court erred in denying her motion to modify
the dispositional order. She had requested that legal custody of the children be
transferred from the DHS to her aunt and the aunt’s spouse. Rebekah cites Iowa
Code section 232.99(4) for the proposition the court is to make the least
restrictive disposition appropriate, and that pursuant to sections 232.99(4) and
232.102(1)(a) legal custody with a relative is less restrictive than legal custody
with the DHS.
At the time of the modification hearing a home study of the home of the
aunt and spouse had been conditionally approved. The evidence showed that
the aunt had been in Rebekah’s apartment April 13, 2014, just sixteen days
before baby L.W.’s death, believed the apartment to be clean, and apparently
saw nothing wrong with L.W. The aunt was scheduled to take foster care
classes, but the classes had not yet started. 9
We have earlier noted the deplorable, intolerable condition of the
apartment in which the children were living on April 29, 2014, as well as L.W.’s
condition at the time of his death on April 29. Evidence before the juvenile court
showed that a leasing consultant for the apartment building indicated that in
March 2014, the conditions in the apartment were awful: it contained rotting
garbage and food wrappers, it reeked with the smell of cat urine and dirty
diapers, and she found it hard to breathe inside. Other evidence showed that on
March 20, 2014, a pest control employee entered the apartment and found it to
be one of the worst he had ever encountered.
Under the circumstances shown, the juvenile court was properly skeptical
about the aunt’s indication that both the apartment and L.W. were fine on April
13, 2014. Although the court declined to modify the dispositional order at that
time, it noted its denial did not prevent a relative placement in the future if such
were determined to be in the children’s best interest. After the aunt and spouse
completed the adoptive home study process in January 2015, they were
approved and licensed as foster parents, and the children were in fact placed
with them in February 2015, with a recommendation they were suitable to adopt
the children. “Before a dispositional order in a juvenile proceeding can be
modified, the party seeking modification must first prove a substantial change in
material circumstances, and that under the new conditions, a change is in the
best interest of the child or children.” In re D.G., 704 N.W.2d 454, 458 (Iowa Ct.
App. 2005). Under the circumstances shown by the evidence before the juvenile
court, we agree with its conclusion that Rebekah did not meet her burden to 10
show there had been such a material change of circumstances since the July
2014 dispositional order such that it was in the children’s best interest to change
their legal custody from the DHS to her aunt and spouse.3
Rebekah contends the juvenile court erred in denying her motion to
dismiss the petition for termination of her parental rights. She asserts the State
failed to follow the conditions under which she agreed on January 30, 2015, to
continue a dispositional review/permanency hearing scheduled for that date.
She acknowledges the January 30 hearing was not reported and in support of
her contention of error alleges the existence of facts that are not part of the
record.
Our appellate rules provide that where there is no record of proceedings at
a hearing or trial, the appellant “may prepare a statement of the evidence or
proceedings from the best available means, including the appellant’s
recollection,” subject to objections or proposed amendments by the appellee, and
any objections or proposed amendments are to be submitted to and ruled on by
the district court. Iowa R. App. P. 6.806(1), (2), (3). It is Rebekah’s obligation to
provide us with “a record affirmatively disclosing the error relied upon.” See
State v. Mudra, 532 N.W.2d 765, 767 (Iowa 1995). By not providing such a
record, Rebekah has waived error on this contention. See id.
Rebekah contends the juvenile court erred in admitting State’s Exhibits
050 through 052 over her objections. The reports apparently relate to child
3 We need not and do not address the question of whether the February 2015 placement of the children with the aunt and spouse renders moot Rebekah’s complaint that the court did not do so in October 2014. 11
abuse assessments concerning children of a male (other than Michael) by whom
she became pregnant early in these CINA proceedings and whose child she
gave birth to during these CINA and termination proceedings. She argues the
reports are not reports “relating to a child in a proceeding under this division” as
required by Iowa Code section 232.96(6) for such reports to be admissible over a
hearsay objection. She further argues they are not “relevant and material” as
required by section 232.96(6) because there was no evidence she had any
knowledge related to the reports.
As noted earlier, our review is de novo. On our de novo review we have
not considered these reports and thus need not address the question of whether
the juvenile court should have sustained Rebekah’s objection to them.
Rebekah contends the juvenile court erred in denying her request for six
more months to work toward reunification. She cites Iowa Code section
232.104(2)(b). This issue thus apparently relates to the outcome of the
permanency hearing that was held jointly with the termination hearing. Rebekah
argues, however, that “the issues of termination must be examined after the
resolution of Rebekah’s criminal charges.”
Somewhat relatedly, Rebekah contends the juvenile court erred in finding
termination was in the children’s best interest, and the better course would have
been to continue the termination hearing until after her criminal trial because of
her “extraordinary progress.” She asserts that the criminal charges were her only
unresolved issue and argues the children’s long-term best interest would be 12
served by continuing the termination hearing until after the criminal trial was
concluded.
In September 2014, Rebekah was charged with criminal child
endangerment resulting in L.W.’s death, and with criminal neglect of L.W. and the
children. At the time of the May 2015 permanency/termination hearing, her trial
had been continued several times and the charges were unresolved. Rebekah
had suffered from domestic violence, mental health problems, including
dependent personality features, and substance abuse. She had been offered
services at the time of L.W.’s birth but had declined. Rebekah had exhibited
instability and dependence, and by developing a new relationship and becoming
pregnant shortly after the children were removed, had exhibited a lack of focus
on the children and possible reunification. The juvenile court had concluded she
was a caretaker of the children and baby L.W. at the time of L.W.’s death from
neglect, malnutrition, and dehydration. Although Rebekah acknowledged she
bore some responsibility for the circumstances of L.W. and the children by
allowing Michael to ignore their needs and neglect them, she had not
acknowledged her own individual responsibility to have assured they were
properly cared for and their needs met. The child born to Rebekah in March
2015 had been removed and was in foster care. Rebekah struggled with
parenting the children and her newborn at the same time (during visitations).
Although she had participated in many services and met certain goals, there was
a lingering concern that she was not internalizing the things she was working on.
The juvenile court found, in part: 13
Many of the same circumstances which existed at the time of the initial removal of [M.W. and Z.W.] remain to date. Rebekah is nearly 100% dependent on others to meet her financial and emotional needs. She has not addressed co-dependency and she has engaged in another relationship shortly after baby [L.W.’s] death and became pregnant with her fourth child . . . . Rebekah initially identified two males as potential fathers of [her new child]. One male has been eliminated through DNA testing. .... For purposes of a permanency hearing regarding [M.W. and Z.W.], the Court does not find that allowing the parents an additional six months to work toward reunification is in the best interests of the children, nor does the Court believe an additional six months will eliminate the conditions which existed at the time of the adjudication. .... . . . This Court finds that it would be in the best interests of [M.W. and Z.W.] to terminate the parent-child relationships so they will have the opportunity to grow and mature in a safe, healthy and stimulating environment.
Upon our de novo review, we agree with the juvenile court’s denial of a
six-month extension. Subject to resolution of remaining issues, we also agree
that if termination is otherwise appropriate it is in the children’s best interest.
Rebekah contends the juvenile court erred in denying her motion for
increased visitation and thus erred in finding the State made reasonable efforts to
reunify. These contentions relate to decisions by the court concerning visitation
during the CINA case and argument made at the termination hearing.
Rebekah had two supervised two-hour visits per week. She sought longer
visitations, including visitations in her home, and sought a trial home placement.
However, she struggled with parenting the children and her newborn at the same
time. The children exhibited negative, disruptive behavior after visits. Rebekah
continued a somewhat unstable lifestyle. She did not acknowledge any personal,
individual responsibility for L.W.’s death or the deplorable living conditions at the 14
time of his death and the children’s removal. We find no error in the juvenile
court’s denial of increased visitations and thus no failure to make reasonable
efforts toward reunification.
Rebekah contends the juvenile court erred in denying her alternative
permanency request for guardianship with relatives under section
232.104(2)(d)(1). She argues that, contrary to the court’s finding, termination is
not in the children’s best interest at the present. We have above concluded that
if termination is otherwise appropriate it is in the children’s best interest.
Rebekah further argues that while her relatives prefer adoption to a guardianship,
they are willing to be guardians and that if she is denied a six-month extension,
the children should be placed in the guardianship and custody of her aunt and
aunt’s spouse. We have above affirmed the juvenile court’s denial of a six-month
extension. The juvenile court concluded, among other things, that:
Rebekah’s request for a guardianship with a relative is not an appropriate permanency option in this case. Guardianship is not a legally preferable alternative to termination of parental rights and adoption. Termination is the preferable solution when a parent is unable to regain custody within the time frames of chapter 232. An appropriate determination to terminate a parent-child relationship is not to be countermanded by the ability and willingness of a family relative to take the child. The children’s best interests are served by a termination of parental rights rather than a guardianship to allow the children to remain in a permanent, stable, and safe home.
(Quotations and citations omitted). We agree with the juvenile court, and affirm
on this issue.
Rebekah contends the juvenile court erred in terminating her parental
rights to M.W. under section 232.116(1)(h). She argues the evidence does not
satisfy the fourth element of that provision, clear and convincing evidence that 15
[M.W.] cannot be returned to her custody as provided in section 232.102 at the
present time. That element is proved when the evidence shows the child cannot
at the time of the termination hearing be returned to the parent without remaining
a CINA. In re R.R.K., 544 N.W.2d 274, 277 (Iowa Ct. App. 1995). The threat of
probable harm will justify termination of parental rights, and the perceived harm
need not be the one that supported the child’s removal from the home. In re
M.M., 482 N.W.2d 812, 814 (Iowa 1992).
As noted above, Rebekah had not acknowledged any personal, individual
responsibility for L.W.’s death or the children’s intolerable living conditions. She
struggled with parenting the children and her newborn. We fully agree with the
juvenile court that M.W. could not be returned to her without remaining a CINA
and thus affirm on this issue.
Rebekah contends the juvenile court erred in finding termination of her
parental rights appropriate under section 232.116(3) because relatives should
have had legal custody and because termination would be detrimental to the
children due to the closeness of the parent-child relationship.
We have above dealt with issues concerning legal custody and
guardianship in the relatives, Rebekah’s aunt and spouse, and will not revisit
those issues here.
Rebekah argues there were clear bonds between her and the children and
it would be detrimental to them to terminate her parental rights. A court need not
order otherwise justifiable termination if “[t]here is clear and convincing evidence 16
that termination would be detrimental to the child at the time due to the closeness
of the parent-child relationship.” Iowa Code § 232.116(3)(c).
The provisions of section 232.116(3) are permissive, not mandatory. In re
J.L.W., 570 N.W.2d 778, 781 (Iowa Ct. App. 1997), overruled on other grounds
by P.L., 778 N.W.2d at 40. The court uses its best judgment in applying the
factors contained in the statute. P.L., 778 N.W.2d at 40. A court has the
discretion, based on the unique circumstances of the case and the best interests
of the child, as to whether to apply this section to save the parent-child
relationship. In re D.S., 806 N.W.2d 458, 475 (Iowa Ct. App. 2011).
The evidence does show some bond between Rebekah and the children.
However, the children are very young, have been removed for over a year, are
thriving in the care of the aunt and spouse, and are adoptable. The aunt and her
spouse desire to adopt them. The children could not be returned to Rebekah at
the time of the termination hearing. As noted by the juvenile court, the children
need and deserve permanency and stability in their lives. They need it now, not
at some indefinite point in the future. We conclude that although there is some
bond between Rebekah and the children, under the circumstances shown there
is not clear and convincing evidence that termination would be detrimental to
them.
We affirm the termination Rebekah’s parental rights as to M.W. and
reverse the termination of her parental rights as to Z.W.
AFFIRMED IN PART AND REVERSED IN PART.