Opinion
No. 3-264 / 03-0452.
Filed June 25, 2003.
Appeal from the Iowa District Court for Des Moines County, Mark Kruse, District Associate Judge.
A mother appeals the termination of her parental rights to two children under Iowa Code § 232.116(1)(f), contending the State failed to meet its burden of proof to demonstrate clear and convincing evidence that the children could not be returned to her. REVERSED AND REMANDED.
Peter W. Hansen, Hansen Law Office, Burlington, for appellant Mother.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant Attorney General, and Pamela Dettmann, Des Moines County Attorney, for appellee State.
Andrew Hoth, Hoth Law Offices, Burlington, guardian ad litem for minor children.
Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.
In severing ties between parent and child, our courts have insisted on viewing the statutory removal periods "with a sense of urgency," reasoning that, "[t]he crucial days of childhood cannot be suspended while parents experiment with ways to face up to their own problems." See In re A.C, 415 N.W.2d 609, 613 (Iowa 1987); accord In re D.A., 506 N.W.2d 478, 479 (Iowa Ct.App. 1993); In re R.J., 495 N.W.2d 114, 116 (Iowa Ct.App. 1992). A mother here contends this cogent principle has been turned on its head. She claims her parental rights to two of her children were terminated based solely on the time they were out of her care, and not on her lack of parental fitness. Mindful that the State bears the burden of proving unfitness by clear and convincing evidence, we are compelled to agree.
I. Background Facts and Proceedings
Betty is the mother of four children. At issue are her parental rights to the younger two, T.A., born in 1996, and O.A., born in 1998.
Betty's two older children live with her.
Betty pled guilty to a federal drug conspiracy charge. Before beginning her sentence, she made arrangements to have her children cared for by relatives in Burlington, Iowa.
While Betty was serving her sentence, the Department of Human Services removed T.A. and O.A. from a relative's care after learning that T.A. had sustained physical injuries while in the care of that relative. The district associate court adjudicated them in need of assistance based on the relative's failure to supervise them. See Iowa Code § 232.2(6)(c)(2) (1999). This was the children's first involvement with the Department.
T.A. and O.A. were briefly transferred to the home of Betty's sister, but the Department returned them to foster care on discovering that the sister transferred the children to another caretaker without State permission. Meanwhile, Betty moved from prison to a halfway house, obtained a job, and after several months, was placed on probation.
Following Betty's reintegration into the community, the State petitioned to terminate her parental rights to T.A. and O.A. The juvenile court granted the petition pursuant to Iowa Code section 232.116(1)(f) (2001) (child cannot be returned to the home). This appeal followed.
Betty contends: 1) the State failed to prove that the children could not be returned to her care as provided in Iowa Code section 232.116(1)(f) and 2) the Department did not make reasonable efforts to reunify her with her children.
II. Iowa Code section 232.116 (1)(f)
Iowa Code section 232.116(1)(f) (2001) requires proof of the following:
(1) The child is four years of age or older.
(2) The child has been adjudicated a child in need of assistance pursuant to section 232.96.
(3) The child has been removed from the physical custody of the child's parents for at least twelve of the last eighteen months, or for the last twelve consecutive months and any trial period at home has been less than thirty days.
(4) There is clear and convincing evidence that at the present time the child cannot be returned to the custody of the child's parents as provided in section 232.102.
This case turns on the fourth element. Betty argues that, at the time of the termination hearing, she was "ready, willing and able to take her sons in her immediate care" and the State did not prove otherwise. The State counters that termination is warranted because "[t]he children have been in foster care for 18 months and have been out of their mother's care for at least 37 months." The State also notes that, prior to the Department's involvement, the children were moved from home to home, apparently with Betty's approval, and suffered harm at the hands of one of their caretakers.
If a parent's incarceration were alone sufficient to justify termination of parental rights, we would agree with the State's position, as there is no question the children were not in Betty's care while she was imprisoned and, but for her imprisonment, the children would not have been transferred from caretaker to caretaker. Our courts, however, have rejected the notion that "termination is a necessary result of conviction of a crime and resulting imprisonment." See In re M.M.S., 502 N.W.2d 4, 8 (Iowa 1993); See also In re S.J., 620 N.W.2d 522, 525 (Iowa Ct.App. 2000). Instead, we have focused on whether the incarcerated parents have taken responsibility for their actions. See M.M.S., 502 N.W.2d at 8; In re J.S., 470 N.W.2d 48, 51 (Iowa Ct.App. 1991). On our de novo review of the record, we are convinced Betty has.
Betty's only criminal record was the conviction for which she was serving time. Before she pled guilty, she was on pretrial release and living with her children. The record contains no evidence that she abused drugs or alcohol.
The State contends the children have not been in Betty's care since July 1999, when she was arrested. The record reflects that, after a week in jail, Betty was placed on pretrial release and remained with her children until she began serving her sentence in January 2000.
After Betty was convicted, she placed each of the children with relatives and ensured that the aunt and uncle who were caring for T.A. and O.A. had power of attorney over them.
Within five months of beginning her sentence in Texas, Betty sought and obtained a transfer to a facility one and a half hours away from Burlington, where the children were living. She took parenting and other prison classes on her own initiative and made arrangements to have T.A. and O.A. visit her twice a month for seven hours at a time. She testified that prison officials would have curtailed visits if she had been unable to handle the children. They did not do so and she was allowed to see them on a regular basis for thirteen months.
When the Department apprised Betty of the harm to T.A., she specifically advised the social worker who was then handling the case that she did not want the children to be returned to the abusive home of her relative; she also suggested an alternate relative placement.
After Betty was placed on probation, she continued her employment, retrieved her two older children from their respective fathers, and obtained suitable housing. Shortly before the termination hearing, she moved to a larger apartment to accommodate her two younger children. She expressed a desire to become a dietician and move away from the city that had been the locus of so many of her problems.
As for Betty's parenting skills, the record reflects she was caring for both her older children, "without incident." In re T.B.B., 460 N.W.2d 881, 882 (Iowa Ct.App. 1990). She testified that, if given an opportunity, she would show her younger children "the love and affection a mother can give them, be patient with them, do whatever it takes." When asked how she would do this given their trouble with bonding, she stated, "[m]y boys bond. When I'm with them, when I'm around them, they bond." She further explained that she had nine years of experience caring for her cousins, who had been diagnosed with attention deficit hyperactivity disorder. The Department did not refute these assertions.
In short, Betty did everything expected of her and more. While the Department's social worker testified Betty had not demonstrated the "long-term consistency" that he wished to see, the record reflects her progress from convict to productive citizen was steady and pronounced. Cf. In re J.R., 478 N.W.2d 409, 412 (Iowa Ct.App. 1991) (declining to terminate mother's parental rights, given her "remarkable transition.")
The State points out that Betty once called the Department and advised a social worker she could not meet her children's needs at that time. The record reflects this call was made while Betty was at the halfway house. Betty followed up the call with a handwritten letter advising the Department's social worker not to misconstrue the conversation as expressing a desire to have her parental rights terminated.
What we are left with in support of termination is the risk of placing the children with their mother following an eighteen-month period of no contact. We recognize that this is not an insignificant risk, as discussed by a health professional who evaluated the children shortly before the termination hearing. However, we are forced to ask whether the risk is any greater than that of placing the children in their ninth foster care home in eighteen months. In weighing these relative risks, we are struck by the Department's evolving characterization of the children. Shortly after their removal, a social worker stated the children were intelligent and healthy, did not pose a discipline problem to the foster family, and had "no service needs at this time." At the termination hearing, he reported that the children had been diagnosed with attention deficit hyperactivity disorder, were experiencing reactive attachment disorder, and had recently been placed in yet another temporary foster home.
The social worker testified:
I anticipate not having this case after next month. And they'll be looking for, you know, therapeutically, it will be an African-American family that would be the therapeutic home. I think the report said therapeutic foster home before placing them in foster home which means two more moves which is disheartening to me because I know they have been through a lot . . . ."
We concur with the State that, but for Betty's criminal act in 1999, this series of placements might have been avoided. However, we cannot conclude that the appropriate resolution of this tragic situation is termination of her parental rights. Cf. In re B.F., 526 N.W.2d 352, 356 (Iowa Ct.App. 1994) (holding the children's best interests were not served by termination where the children were bonded to their mother and no prospective parents had expressed a desire to adopt them); In re S.J., 451 N.W.2d 827, 833 (Iowa 1990) (same). As our highest court has stated, Iowa Code section 232.116(1)(f) generally contains "the dual elements of parental unfitness and the failure of the parent to become minimally fit to parent the child . . . ." In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). Assuming the State proved parental unfitness at the time of removal, it did not prove that Betty failed to become minimally fit by the time of the termination hearing. Cf. In re Chad, 318 N.W.2d 213, 219 (Iowa 1982) (finding no clear and convincing proof mother refused or neglected to comply with her parental duties). We become more convinced of the State's failure of proof, on examining the Department's reunification efforts.
The children were removed due to the failures of a relative of Betty rather than Betty herself, but the State contends Betty was responsible for the children's placement in that home.
III. Efforts At Reunification
The State must show it made reasonable efforts toward reunification as part of its ultimate burden of proving that a child cannot be safely returned to the care of a parent. See C.B., 611 N.W.2d at 493. We are not convinced the Department did so.
The State argues Betty waived error on this issue. We disagree. See In re C.B., 611 N.W.2d at 492 (noting challenge to the sufficiency of the evidence implicates the reasonable efforts requirement).
The key service Betty required to facilitate reunification with her children was visitation. She knew this and, before the Department intervened, she independently arranged for it.
After the Department removed the children, Betty sought to continue that visitation scheme. Although the Department's goal was "family unification," a social worker recommended that Betty have no contact with either child until her release from prison.
When the district associate court ordered the Department to arrange visitation between Betty and her children, "[i]f possible . . .," the Department did not do so. In light of this response, Betty's only contact with T.A. and O.A. for the next several months was via correspondence.
On entering the halfway house, Betty again sought visitation. The Department denied the request, stating:
the issue was discussed with this writer's supervisor and due to her continued incarceration and the direction in which the case was proceeding TPR proceedings that visitations were not granted [sic]. [Betty] still has six months or more in the half-way house and the fact that children have been out of her care since July of 1999 visits were denied. The Department is not in a position to override Federal laws concerning establishing permanency for these children.
Betty then sought court intervention. The district associate court addressed the visitation issue in a ruling dated November 6, 2002. Citing its prior visitation order issued more than a year earlier, the juvenile court stated
[w]hile the term "possible" was not defined, it certainly was possible to have supervised visitation between the mother and the children once she returned to the Quad Cities area. The Court is fully aware of various problems in the setting up visitation [sic] at federal penal facilities outside the state.
The court further stated:
"[o]nce an order is issued it's the affirmative duty of the party who it affects to carry out that order. It should not be necessary for the mother to file a motion to effectuate an order that is already in existence. If the State is under the belief that prior Order allowing supervised visitation was either contrary to the best interests of the children, it would be incumbent to take action to terminate said visitation in the court hearing. That was not done in this case.
Noting a permanency hearing had not yet been held, the court ruled that it would maintain its prior order "allowing visitation on a supervised basis," subject to further hearing if evidence was uncovered that visitation would not be in the children's best interests.
Through counsel, Betty followed up with the department by demanding visitation, as well as parenting classes, a home study, homemaker services, and counseling services. The Department responded by deferring all reunification services pending a scheduled permanency hearing a month later.
Meanwhile, the guardian ad litem recommended against visitation based on the foster parents' concerns and suggested that the court order a psychological evaluation. Four days later, the State petitioned to terminate Betty's parental rights to T.A. and O.A.
By this time, sixteen months had elapsed from the time the Department became involved with the children. The Department does not dispute that Betty requested visitation from the outset. This was the one service needed to maintain the parent/child bond and it was the one service denied Betty throughout the proceedings. Notably, a 2003 psychological evaluation recommending against visitation was premised on the absence of contact between Betty and her children for the previous nineteen months. The evaluator stated, "[f]requency of contact over the past several years should have occurred weekly at their developmental age to maintain any positive attachment bonds. Minimal frequency would have been every 3 weeks."
From June 2000 when Betty obtained a transfer to a nearby prison through July 2001 when the Department became involved with the children, she exercised visitation with her sons once every two weeks. From August 2001 through the termination hearing in late February 2003, the Department disallowed all visitation. We believe this alone was a violation of its reasonable efforts mandate. When combined with the fact that the Department neglected to perform a home study, and afforded Betty no counseling or skills development training, we believe the State failed in its burden of proof. In re C.B., 611 N.W.2d at 492.
IV. Disposition
The State failed to prove by clear and convincing evidence that Betty's parental rights to T.A. and O.A. should be terminated. We reverse and remand for proceedings consistent with this opinion.