IN THE COURT OF APPEALS OF IOWA
No. 15-0761 Filed September 23, 2015
IN THE INTEREST OF P.D. AND K.D., Minor Children,
B.D., Mother, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Woodbury County, Julie A.
Schumacher, District Associate Judge.
A mother appeals the termination of her parental rights to her children
born in 2010 and 2012. REVERSED AND REMANDED.
Daniel Vakulskas of Vakulskas Law Firm, Sioux City, for appellant mother.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant
Attorney General, Patrick Jennings, County Attorney, and J. Kirsch, Assistant
County Attorney, for appellee State.
Kathryn Stevens, Sioux City, attorney and guardian ad litem for minor
children.
Considered by Vaitheswaran, P.J., and Potterfield and McDonald, JJ. 2
VAITHESWARAN, Presiding Judge.
A mother appeals the termination of her parental rights to two children,
born in 2010 and 2012. She contends the State failed to prove the grounds for
termination cited by the district court and termination was not in the children’s
best interests.
I. Background Facts and Proceedings
The Department of Human Services became involved with the family in
the fall of 2013 after learning that one of the children had “a significant diaper
rash” and “severe head lice.” Additionally, the children’s mother left the children
with their great-grandparents so she could spend time with her husband, who
was serving in the military and was stationed in another State. She did not
inform the caretakers where she was going. Concerns were expressed about the
mother’s mental health and her ability to parent the children.
The district court ordered the children removed from the mother’s care.
They were subsequently adjudicated in need of assistance and the district court
required the parents to “participate in couples counseling; participate in parenting
classes; [and] participate in visitations as arranged by the Iowa Department of
Human Services, in consultation with the guardian ad litem.” In addition, the
court ordered the mother to “complete a psychiatric evaluation and follow through
with the recommendations of that evaluation.”
The mother returned to Iowa and cooperated with services. She
underwent a psychiatric evaluation, which resulted in current diagnoses of “major
depressive disorder, recurrent moderate” and anxiety disorder (not otherwise 3
specified). She began therapy but was unable to continue due to non-payment
of an outstanding bill.
The mother also participated in visits with her children. Initially, those
visits were supervised and took place twice a week for two hours each time.
Later, they were expanded to two semi-supervised five-hour visits per week, in
her apartment.
The mother generally maintained the cleanliness of her apartment and
interacted appropriately with the children. The provider’s primary concern related
to the mother’s tendency to fall asleep and her occasional failure to wake up for a
visit. The service provider admonished the mother to stay awake during visits.
A year after the department became involved, the district court found the
mother “made progress toward reunification.” The court noted “she maintained
employment and an apartment,” used “bus passes for transportation as needed,”
and was “compliant with taking her medication for depression.” The court found
the mother was “able to demonstrate consistency, appropriate discipline, and
routine” and needed “to continue to demonstrate stability with mental health and
management of her home and money.” The court granted the parents six
additional months to work towards reunification and scheduled a review hearing
in three months.
The first visit following entry of the extension order was canceled because
the mother overslept. The mother also overslept prior to another visit. Although
she noted a friend was assisting her with finances and her husband was to pay
the outstanding therapy bill, she continued to have financial difficulties. 4
Based on these setbacks, the department “made the decision to revert
[the mother’s] visits back to fully supervised, twice per week.” The department
opined, “[t]he parents have stopped making progress toward reunification and
appear to be in the same situation they were in at the last hearing.”
The district court accepted this prognosis at the three-month review
hearing and ordered the State to file a termination petition. Three months later,
the court terminated the parents’ rights to their children pursuant to Iowa Code
sections 232.116(1)(d) (2013) (circumstances that lead to adjudication as a child
in need of assistance continue to exist despite the offer or receipt of services), (f)
(child four or older cannot be returned to parent’s custody), (h) (child three or
younger cannot be returned to parent’s custody), and (i) (requiring proof the child
meets the definition of a child in need of assistance based on a finding of
physical or sexual abuse or neglect, there is clear and convincing evidence that
the abuse or neglect posed a significant risk to the life of the child or constituted
imminent danger to the child, and there is clear and convincing evidence that the
offer or receipt of services would not correct the conditions which led to the
abuse or neglect of the child within a reasonable period of time). Both parents
appealed, but the father’s appeal was dismissed as untimely.
II. Termination Grounds
The mother contends the State failed to prove termination was warranted
under sections (d), (f), and (h). The mother does not challenge the court’s
reliance on section (i). Accordingly, we conclude the State proved termination
was warranted under section (i). See In re W.R., No. 03-0789. 2003 WL
21362658, at *2 (Iowa Ct. App. June 15, 2003) (affirming termination decision on 5
unchallenged ground); see also In re S.R., 600 N.W.2d 63, 64 (Iowa Ct. App.
1999) (we may affirm if we find clear and convincing evidence to support any of
the grounds cited by the juvenile court).
III. Best Interests
Termination must be in the children’s best interests. In re P.L., 778
N.W.2d 33, 37 (Iowa 2010). As the district court noted, the primary
considerations on the best interest issue are “the child’s safety,” “the best
placement for furthering the long-term nurturing and growth of the child,” and the
“physical, mental, and emotional condition and needs of the child.” Id.
In granting six additional months to reunify, the district court set forth clear
expectations for the mother. She was to (1) work with service providers in
keeping “a clean and orderly home,” (2) work with the service provider on
“managing and budgeting her finances,” (3) “address past-due medical bills,” and
(4) attend a co-parenting class with her husband. The mother fulfilled each of
these expectations.
The cleanliness of the mother’s apartment was of little concern. At worst,
the service provider noted a dog smell which, she stated, could be alleviated by
airing out the apartment. In any event, the father, who was the owner of the dog
planned to move out of the apartment. While the service provider also cited the
mother’s failure to pick up toys following a previous visit, she acknowledged the
apartment was generally clean. There is no question the mother’s housekeeping
skills raised safety concerns in the past. However, the mother addressed the
concerns. There was scant if any evidence that the condition of the apartment
posed a safety risk to the children at the time of the termination hearing. 6
Turning to the parents’ finances, the mother told the service provider she
did not have a great deal of money to work with. To improve her financial
situation, the mother changed her job to one that afforded her more hours. At the
time of the termination hearing, she was working thirty-three to forty-five hours
per week. She was current on her rent payments and had paid down a utility bill.
While she did not avail herself of the budgeting services offered by the service
provider who supervised visits, she obtained assistance elsewhere and
established she was able to make ends meet. In short, the mother equipped
herself to meet the children’s physical needs and did so without the department’s
assistance.
The mother also addressed “past-due medical bills” as required by the
court. As of the termination hearing, she had qualified for Medicaid and had
dealt with the outstanding bill for mental health services that impeded her ability
to continue with therapy. The mother testified she had been seeing a therapist
weekly for six to eight weeks prior to the termination hearing. During that period,
she missed only one appointment, which she rescheduled. Her concerted efforts
to continue mental health treatment inured to the benefit of the children.
The mother registered for two sessions of eight co-parenting classes.
Although she was obtaining a divorce from her husband, she acknowledged the
need to work with him on parenting the children.
In addition to fulfilling the expectations set forth in the order granting a six-
month extension, the mother regularly participated in visits with the children. The
order extending time was entered on September 16, 2014. The mother engaged
in semi-supervised visits on September 17, 24, 29, October 1, 8, 13, and 15. On 7
October 20, the mother was informed the visits would become supervised and
would be reduced from five hours to two hours. The mother participated in
supervised visits on October 20, 27, 29, November 3, 5, 12, 14, 17, 24, 26,
December 1, 3, 8, 22, 29, 31, January 5, 14, 16, 21, 23, February 4, 6, 9, 11, 16,
18, 23, March 2, 4, 6, 9, 11, 16, 18, 23, 30, and April 6.1
The mother rarely missed visits. During the six-month period preceding
the termination order, the mother overslept on September 22, called in sick on
October 6 and October 20, and had a December 12 visit cancelled because she
failed to confirm her availability before the designated call-in time of 8:45. Three
other visits were canceled by the service provider.
During the visits, the mother provided lunches and snacks, engaged in
craft activities with the children, and interacted appropriately with them. In its
final report, the department noted the mother “does a good job addressing
behaviors the girls have during the visits.”
We recognize the mother dozed off during portions of certain semi-
supervised visits, primarily while the children were napping or watching a movie
or when her husband was present for the visit. We are not convinced this factor
warranted termination of her parental rights. The mother was working long
hours, attempting to manage her financial affairs, addressing deep-seated
depression, maintaining her apartment, and dealing with her imminent divorce.
She also had to attend her therapy and other appointments without a car or
license. The fact she fell asleep on occasion was not surprising.
1 During the last month, the department reduced the visits to one per week. 8
We are more concerned with the older child’s behaviors, including
tantrums. A clinical assessment performed days before the termination hearing
cited the foster parents’ report of “increased anxiety symptoms.” The child also
began calling the mother by name to get a reaction from her and, during one of
the final visits with the mother, turned away when the mother tried to give her
hugs. The therapist characterized the child’s behaviors as “[i]nappropriate
(Guarded)” and recommended individual therapy for the child “to learn healthy,
rational, appropriate, and effective ways of expressing self and operationalizing
physical and emotional needs and wants.”
While this assessment gives us pause, the child showed the same
behaviors before the six-month extension. For example, close to one year before
the termination hearing, the service provider reported the child did not want to go
to visits and had regressed in potty training. The Area Education Association
became involved and assisted the child with these behaviors. The record
suggests this agency’s involvement, together with individual therapy, would be
critical in assisting the child cope with the upheavals in her life, regardless of
where she was placed.
As for the younger child, the record contains no indication of physical or
emotional harm during the extension period.
The mother met each of the department’s and court’s expectations well
within the six-month extension period. The extension would be rendered
meaningless if a parent’s compliance during the last half of the extension period
were discounted based simply on the filing of a termination petition. See In re
A.S., 2014 WL 4938010, at *4 (“We do not believe it was proper to discount [the 9
mother’s] improvement from December 2013 through March 2014 simply
because the CINA case was on a trajectory toward termination.”). Given the
mother’s achievement of the goals prescribed by the district court in granting a
six-month extension, her significant progress during the last three months of the
extension period, and the absence of harm to the children other than the harm
associated with the many upheavals in the children’s lives, we conclude
termination of the mother’s parental rights was not in the children’s best interests.
We reverse the termination of the mother’s parental rights to these two
children and remand for further proceedings with the permanency goal changed
to reunification.
REVERSED AND REMANDED.
Potterfield, J., concurs; McDonald, J., dissents. 10
MCDONALD, J. (dissenting)
I respectfully dissent. While the majority cites the statutory best interest
standard, the majority does not at all discuss why ordering reunification is in the
best interests of these children. Instead, it appears the majority opinion really
discusses whether there was sufficient evidence to establish the statutory ground
authorizing termination. However, Brittany, the mother, does not challenge the
statutory grounds authorizing termination. Given the posture of the case, the
only question presented is whether termination of the Brittany’s parental rights is
in the best interests of these children. In making that determination, we “give
primary consideration to the child[ren]’s safety, to the best placement for
furthering the long-term nurturing and growth of the child[ren], and to the
physical, mental, and emotional condition and needs of the child[ren].” Iowa
Code § 232.116(2). After considering the relevant statutory criteria, I conclude
termination of the mother’s parental rights is in the best interests of the children.
Brittany’s past conduct demonstrates her mental health conditions render
her unable to provide for the children’s safety and unable to meet their physical,
mental, and emotional needs outside a supervised setting. See Iowa Code
§ 232.116(2)(a) (providing the court may consider “[w]hether the parent’s ability
to provide the needs of the child is affected by the parent’s mental capacity or
mental condition”); In re K.F., No. 14–0892, 2014 WL 4635463, at *4 (Iowa Ct.
App. Sep. 17, 2014) (“What’s past is prologue.”); see also In re A.B., 815 N.W.2d
764, 778 (Iowa 2012) (noting a parent’s past conduct is instructive in determining
future behavior). The majority notes the family came to the attention of the Iowa
Department of Human Services (“IDHS”) in the fall of 2013. That is true, but it 11
does not reveal the entire story. Brittany has neglected the children and
jeopardized their health and safety for far longer.
In the spring of 2012, Brittany left P.D. with Brittany’s stepmother,
Jennifer, for one month after K.D.’s birth. During the entire month, Brittany never
called her stepmother to check on P.D. The following year, in May 2013, the
family came to the attention of the Colorado Department of Human Services
following reports of child neglect, including physical and verbal altercations
between the parents and unsafe and unsanitary conditions. It was reported that
the parents were locking K.D. in her room for hours on end despite her crying,
that the children had feces in their beds, that there were feces on the wall in the
children’s room, and that the floors of the house were littered with dirty diapers
and rotten food. The father and his sister largely confirmed the reports during the
course of the investigation. The neighbor also confirmed the reports, explaining
Brittany did not give the children baths and threw diapers on the floor. The
neighbor told the investigator Brittany allowed P.D. to sleep in urine and feces for
so long that P.D. developed a skin condition. By the time the investigation was
completed, Brittany had moved to Sioux City with the children. The Colorado
case was closed as unfounded after the father and his sister spent days cleaning
the house in Brittany’s absence.
In September 2013, Brittany left the children in Sioux City with relatives
and then left Iowa to return to Colorado without informing any of the people
caring for the children. Right before leaving, Brittany told her stepmother she
had no bond with K.D. but wanted to keep P.D. The relatives took P.D. to seek
medical treatment because she had a severe diaper rash. P.D. was diagnosed 12
with a severe yeast infection. It was also disclosed at that time that the children
had severe head lice and that both children had suffered from untreated diarrhea
for almost two weeks. The family reported Brittany demonstrated severe mood
swings and Brittany told them she was “too stressed to deal with the children.” It
was at this time, the Iowa Department of Human Services intervened and
removed the children from the parents’ care.
Although IDHS initiated this case in September 2013, Brittany did not
return to Iowa to address any issues with the children until November 29, 2013.
She has not demonstrated any greater urgency since that time. In January 2014,
Brittany was diagnosed with major depressive disorder, anxiety, and ADHD. She
failed to follow through with treatment. Her failure to follow through with
treatment was evident during visitation with the children. She did not provide for
the children’s needs during visits. She frequently missed visitations because she
slept through them. When she did exercise visitation, Brittany frequently ignored
the children and fell asleep.
By September 2014, the matter came on for dispositional review hearing.
The juvenile court found Brittany had made some progress toward reunification.
The juvenile court noted she had maintained employment, had been taking her
medication, and had been compliant with her mental health therapy. The court
also noted that concerns persisted regarding Brittany’s struggles with budgeting,
her mental health, and the cleanliness of her home. The juvenile court granted
the parents an additional six months to complete expected behavioral changes.
It was revealed during the subsequent termination hearing, however, that things
were not as they seemed. By the time of the dispositional review hearing, 13
Brittany had actually quit her employment because she was not getting enough
hours. She failed to have any alternative employment ready, and she was
unemployed from August through December of 2014.
Despite being given six additional months in September 2014 to make
changes demonstrating the ability to provide for the children, Brittany’s behavior
got worse for an extended period of time. As noted above, she quit her
employment and failed to address the department’s concerns regarding her
ability to actually meet the most basic needs of the children. The department
decreased Brittany’s visitation with the children because she continued to miss
visitation and sleep through visitation. She failed to follow through with her
therapy. Following a dispositional review hearing in December 2014, the juvenile
court found, “[l]ittle, if any, progress has been made since [the] permanency
hearing.” The juvenile court also found that “[c]oncerns have been raised
regarding Brittany sleeping during visits and oversleeping, causing her to miss
several of the scheduled visits. The children presented as overly tired, displaying
behavior issues and night terrors.”
Immediately prior to the termination hearing, Brittany started to make
some improvements, but there is little evidence she would be able to maintain
them based on her lack of progress since she first abandoned her child in the
spring of 2012, more than three years prior to the termination hearing. Indeed, at
the termination hearing, Brittany testified she missed another mental health
appointment scheduled at 2:00 p.m. the day before the hearing because she
slept through it. When asked why Brittany failed to comply with mental health
recommendations, she testified there was “no good reason.” We have 14
repeatedly held that “last-minute” attempts to address long-standing issues, here
three years, are not enough to preclude termination of parental rights. See In re
C.B., 611 N.W.2d 489, 494 (Iowa 2000) (“The crucial days of childhood cannot
be suspended while parents experiment with ways to face up to their own
problems.”); In re I.V., No. 15-0608, 2015 WL 4486237, at *2 (Iowa Ct. App. July
22, 2015) (affirming termination order and stating “the mother's past conduct
demonstrates that she was unwilling to avail herself of services when offered and
only made a last-minute attempt for litigation purposes”). “A parent cannot wait
until the eve of termination . . . to begin to express an interest in parenting.” C.B.,
611 N.W.2d at 494.
The majority also fails to discuss the impact of its decision on the children.
The statute directs the court to determine “whether the child[ren] ha[ve] become
integrated into the foster family to the extent that the child[ren]'s familial identity is
with the foster family, and whether the foster family is able and willing to
permanently integrate the child into the foster family.” Iowa Code
§ 232.116(2)(b). In this case, the children were removed from the mother in the
fall of 2013, almost two years ago by the time this decision is filed. During that
time, the mother has never progressed beyond supervised visitation. The
children refer to their foster parents as mom and dad. They do not call Brittany
mom. The foster family is ready to adopt these children. The evidence showed
the foster parents have provided the children with a loving and structured home
environment in which the children have thrived. In contrast, the evidence
showed the girls regressed and acted out when forced to have visitation with
their mother. The care coordinator’s report to the court explained there was little 15
bond between K.D. and the mother. The children’s integration into and support
of the foster family and the lack of bond between the mother and children
strongly militate in favor of terminating the mother’s parental rights. See In re
S.M., No. 14-2088, 2015 WL 800086, at *1 (Iowa Ct. App. Feb. 25, 2015)
(affirming termination order where foster family best served the children’s mental,
emotional, and physical needs); In re N.L.-S., No. 14-2045, 2015 WL 576572, at
*5 (Iowa Ct. App. Feb. 11, 2015) (“The mental capacity of a parent and the
existence of a preadoptive foster family in the life of a child are relevant
considerations in the statutory best-interest analysis.”); In re S.B., No. 14-0593,
2014 WL 2600365, at *1 (Iowa Ct. App. June 11, 2014) (“We note the children
began to make progress in their developmental deficits quickly after they were
placed in foster care.”); In re E.C.-N., No. 12-2306, 2013 WL 1225396, at *1
(Iowa Ct. App. Mar. 27, 2013) (“The children are thriving with their foster family
but regress and appear traumatized following visits with their mother. [The
mother] has been given two years, and a variety of services to learn to parent
these children safely and has not complied. The children must not be made to
await the structure, consistency, and permanency they deserve.”).
The majority’s decision directs the juvenile court to make efforts to remove
these children from a loving family and reunify them with their mother, who has
demonstrated for a period of three years that she cannot provide for their most
basic needs. “Children simply cannot wait for responsible parenting. Parenting
cannot be turned off and on like a spigot. It must be constant, responsible, and
reliable.” In re L.L., 459 N.W.2d 489, 495 (Iowa 1990). For the foregoing
reasons, I respectfully dissent.