Opinion
No. 5-462 / 05-0612
Filed October 12, 2005
Appeal from the Iowa District Court for Jackson County, Arlen Van Zee, District Associate Judge.
A mother appeals from the juvenile court order terminating her parental rights to her daughter. REVERSED.
James Bear, Preston, for appellant-mother.
Thomas J. Miller, Attorney General, Janet L. Hoffman, Assistant Attorney General, and John Kies, County Attorney, for appellee.
Corliss Baty of Baty Tabor, Maquoketa, guardian ad litem for minor child.
Mark R. Lawson of Mark R. Lawson, P.C., Maquoketa, for father.
Heard by Sackett, C.J., and Mahan and Miller, JJ.
Amanda filed a petition on appeal contending the juvenile court erred in terminating her parental rights to her daughter Pearl who was born in the fall of 2002. Amanda contends (1) the State did not meet its burden of providing clear and convincing evidence to support termination, (2) there was insufficient evidence the child could not be returned to her care, and (3) termination was not in the child's best interest. We ordered full briefing and set the appeal for oral argument. On de novo review, we reverse the termination order.
Pearl, who has VATER Association, which is a cluster of birth defects, was voluntarily placed in foster care by Amanda in January of 2004 and found to be in need of assistance in March of that year. Pearl has remained in foster care since her removal. After a review hearing in October, the court concluded Amanda's progress toward meeting goals of the case permanency plan was minimal. At the contested permanency hearing in late November, Amanda asked for additional time to show the need for Pearl's removal from her care no longer existed. The guardian ad litem recommended allowing Amanda an additional three months. The juvenile court did not order a three-month extension, reasoning at least three months would pass before any hearing on a petition filed by the State.
VATER (or VACTERLS) is an acronym for the areas in which problems occur: V — vertebral anomalies/dysgenesis, vascular anomalies; A — anal atresia; C — cardiac anomalies; T — tracheo-esophageal (T-E) fistula; E — esophageal atresia; R — renal anomalies, radial dysplasia; L — limb anomalies; and S — single umbilical artery. Pearl has a heart condition, spinal curvature, weakness on one side of her body, and developmental delays. There is no evidence that these problems have caused major concern.
Amanda contends that in entering such an order the court indicated it anticipated failure and made reunification more difficult.
In early December the State petitioned to terminate Pearl's parents' rights under Iowa Code section 232.116(1)(h) (2003). A hearing on the petition was set for mid-February, 2005.
At the termination hearing, in March of 2005 Sara Bauer, a family support worker from Partners in Parenting, who had been involved with Amanda for a year testified. She visited in Amanda's home and generally came when Pearl was visiting. She saw Amanda and Pearl when they came to play groups which involved other parents and their children. When asked about her observations of Amanda's parenting abilities and whether Amanda could care for Pearl if Pearl were returned home she noted Amanda was able to meet Pearl's basic needs, had age-appropriate expectations, and used age-appropriate discipline. Her sole concern was Amanda's employment history. When asked, apart from the employment issue, if she had any reservations about Amanda and Pearl being together, she replied, "No, I don't."
In finding Pearl could not be returned to the care of either parent at the time of the termination hearing, the court relied heavily on the termination report written by Grace Oldsen, a Department of Human Services ("Department") case worker:
Grace Oldsen makes reference to 17 months of [Department] involvement and points to four specific recent incidents in her Termination Report which show that [Pearl] would be at risk if returned to either parent. Amanda has only recently found stable housing and employment. For most of this time period, she was either homeless or living in totally inadequate housing for a minor child. It is true that Amanda meets with service providers and attends visitation. She can, when supervised, show some parenting skill as evidenced by the testimony of Sara Bauer. In fact, Ms. Bauer testified that she has seen Amanda's parenting skills improve. The issue today is whether 27-month-old Pearl can return to the custody of either parent, and the answer is simply, no. The child would continue to be at risk of adjudicatory harm.
The termination report cites the following three incidents. In January 2005 on a day when schools were closed due to icy conditions and there was a winter storm advisory, Amanda walked to Pearl's daycare to get Pearl for her scheduled visitation. She put Pearl in a stroller and tried to walk back to her apartment, but was having difficulty because things were icy and she kept sliding. Amanda then walked with Pearl to the office of a local service provider to see if they could get a ride home, but the worker was not in her office. Amanda finally was able to walk back to her apartment with Pearl. Later the caseworker pointed out it was not in Pearl's interest to be out in such weather. There was no evidence how cold it was at the time. When the worker asked Amanda why she did not pursue other options such as visiting in a private room at the daycare or rescheduling, Amanda became hostile, used profanities, and insisted it was her right to have visits. There was no evidence Pearl suffered as a result of the walk to Amanda's apartment.
After November of 2004, Amanda had four hours of visitation three days a week with Pearl. The visits were not supervised, but there was drop-in supervision. Amanda frequently walked to pick up Pearl and to take her back to child care.
Three days after that incident, the foster mother came to Amanda's apartment to pick Pearl up after a visit and found Pearl running around the apartment with Q-tips. Amanda said Pearl was cleaning her ears.
At the end of January, Amanda called service providers frantic because Pearl had a temperature of ninety-nine degrees. She already had taken Pearl to the doctor. Amanda asked a neighbor to take Pearl's temperature because she could not do it herself. Amanda said she did not know what to do because Pearl only was drinking juice and sleeping.
The report concluded Amanda has difficulty putting Pearl's needs ahead of her own. She had trouble coping with minor illnesses and often overreacted to them by taking Pearl to the emergency room or seeking to have Pearl receive unnecessary treatment or surgery. It also expressed concern about Amanda's mental health and her non-compliance with medications.
After reviewing the evidence, the juvenile court concluded:
[Pearl] has been in foster care for 14 months and she is 27 months of age. [Pearl] needs permanency. Pearl is bonded to her foster parents and thrives in that environment. She is in a safe and structured environment. Pearl considers the foster parents as her mother and father. The foster parents can provide permanency for Pearl if that option becomes available to them. It is in the best interest of [Pearl] to terminate parental rights so that permanency can be provided.
The court terminated Amanda's parental rights to Pearl under Iowa Code section 232.116(1)(h) (2003) (child is three or younger, child CINA, removed from home for six of last twelve months, and child cannot be returned home).
On appeal, Amanda contends the State did not prove by clear and convincing evidence that Pearl could not safely be returned to her care. She also contends termination is not in Pearl's best interest because they are bonded. She argues she has met many of the goals of the case permanency plan. She contends she has maintained stable housing since August of 2004, she has been employed since the end of January of 2005, she has met with service providers to learn age-appropriate parenting techniques, and by mid-October of 2004 she had progressed from supervised to unsupervised visitation.
The State responded to Amanda's claims saying that she essentially has waived them by not stating any facts in support of her argument, not making any argument beyond the bare statement of the issue, and not stating how any of the cases cited pertain to the issues. See Iowa R. App. P. 6.14(1)( c) ("Failure in the brief to state, to argue or to cite authority in support of an issue may be deemed waiver of that issue."); In re W.R.C., 489 N.W.2d 40, 41 (Iowa Ct.App. 1992). The State concedes in its response to Amanda's brief that error was preserved.
Amanda's basic argument is that the State did not provide sufficient, clear and convincing evidence Pearl could not be returned to her care at the time of the termination hearing. Amanda argues she had fulfilled many of the case permanency plan requirements and Sara Bauer, who supervised visitation, testified she believed Amanda could care for Pearl.
Amanda notes that Grace Oldsen, who authored the termination report, found termination was supported by (1) Amanda's mental health needs, (2) her instability of housing, employment and relationship; and (3) her chronic patterns of faulty thinking and errors in judgments. Amanda notes that the case plan called for her to receive a mental health evaluation and to follow through on recommended treatment. She advances she received an evaluation and it recommended she receive treatment, which she did. Amanda also points out that by the time of the termination hearing she had been living in a satisfactory one-bedroom apartment with a living room and kitchen and with sufficient space for herself and a child. She notes she had been in the apartment for six or seven months. She also points out that the case plan set four months of gainful employment as a goal for her, and at the time of the hearing she had been working for a business for two months and had previously worked there through a temporary service. The employment provided sufficient resources for her to keep her bills current. She argues that while the termination report indicated instability of her relationships as a concern that contributed to Oldsen's opinion that her parental rights should be terminated, the case plan provided no goals to be met concerning this issue and there was no evidence concerning her relationships after August of 2004. She further contends that her alleged faulty thinking and errors in judgment do not support a finding by clear and convincing evidence she cannot care for her daughter.
Oldsen noted that Pearl's father, who was not living with Amanda at the time of the termination hearing, had these same problems and in addition he had untreated substance abuse problems. His parental rights were also terminated but he has not appealed.
The State traces Amanda's history prior to her voluntarily placing Pearl in foster care in January of 2004. In March of 2003 Amanda began participation in voluntary parent education services. Several months later she and the child's father Donald were evicted from their apartment because they were unable to pay the rent and moved in with friends. Donald was found to have provided adequate supervision of Pearl, but to have been violent toward Amanda. Amanda and Pearl subsequently moved into a shelter and began receiving voluntary services from the Department.
In August of 2003 Amanda and Pearl moved in with Amanda's mother and her mother's boyfriend, who apparently were drug users, and a founded report was made against Amanda for allowing them to care for Pearl. Amanda and Pearl then moved in with Amanda's boyfriend and his roommate. Amanda started a job, and her boyfriend cared for Pearl. Amanda indicated she was going for cosmetology training and she joined the Navy Reserves.
In December of 2003 Amanda was no longer living with her boyfriend but was in an unsatisfactory basement apartment. She was offered shelter services or foster care. She moved in with her grandmother and then placed Amanda in foster care. After that she returned to the basement apartment.
Amanda had an episode where she went to the emergency room after cutting her wrists. She moved in with her mother again. Amanda had a diagnosis of Adjustment Disorder with Depressed Mood. She had some treatment but did not make all appointments.
In May of 2004 she lived for a short time with another boyfriend. She missed a hearing, and was involuntarily committed for psychiatric care, released and ordered to attend outpatient treatment. She had supervised visits with Amanda through June of 2004, during which time she lived several places.
In August of 2004 she moved into a HUD-approved apartment and began working at Family Dollar while employed by a temporary service. She attended monthly mental health appointments. In September of 2004 she had unsupervised visits but requested supervision after she had an episode of losing consciousness. She had a psychiatric evaluation at the University of Iowa Hospitals. It was recommended she continue with therapy which she did and was released from court-ordered outpatient treatment. In November she again began unsupervised visits with Pearl. She continued with the visits without apparent problems.
Amanda is a high school graduate. She had one year at Kirkwood Community College and a semester in the Criminal Justice program at Clinton Community college. She has made improvements. For about six months she was employed in one job. Early on she was employed through a temporary agency and later by the business she had worked for as a temporary. She has adequate housing, although she is not a good housekeeper. She has had mental health services and was discharged from court-ordered treatment. She may overreact to Pearl's health problems but it is clear she is willing to seek medical help even if she may seek it when it is not actually needed.
The question is whether there is clear and convincing evidence that Pearl could not be returned to Amanda's care at the time of the termination hearing without being subject to "some harm which would justify the adjudication of the child as a child in need of assistance." In re T.A.L., 505 N.W.2d 480, 484 (Iowa 1993); see Iowa Code § 232.102(5) (2005).
From our de novo review of the record, we do not find clear and convincing evidence Pearl could not safely be returned to Amanda's care. Pearl was not removed from Amanda's care, but placed in foster care voluntarily because Amanda could not care for her at that time. Amanda never harmed Pearl. During Pearl's absence from her care, Amanda has made considerable progress. She has had unsupervised visitation with drop-in checks. She completed her mental health outpatient treatment. Despite difficulties in obtaining transportation, housing, and employment, and living at the poverty level, Amanda has made provision for Pearl. She has been regular in exercising visitation. She and Pearl share a close bond.
The parent-child relationship is constitutionally protected. Quilloin v. Walcott, 434 U.S. 246, 255, 98 S. Ct. 549, 554, 54 L. Ed. 2d 511, 519 (1978); Wisconsin v. Yoder, 406 U.S. 205, 233, 92 S. Ct. 1526, 1542, 32 L. Ed. 2d 15, 35 (1972). There is a rebuttable presumption that a child's interests are best served by leaving the child in the care of the child's parents. See In re L.L., 459 N.W.2d 489, 494 (Iowa 1990). We do not find clear and convincing evidence in the record before us that supports termination under section 232.116(1)(h) or that rebuts the presumption a child should be with its parents. We do not find the incidents cited in the termination report as troublesome as the Department does. See In re L.E.H., 696 N.W.2d 617, 619 (Iowa Ct.App. 2005) ("We find these three incidents, while perhaps indicating [the] need to learn and grow as a parent, . . . do not reach a level constituting an adjudicatory concern."). We recognize Amanda continued to make progress toward case permanency plan goals even after the juvenile court refused to grant her an additional three months before considering termination, even though the guardian ad litem requested the additional time. Because we do not find clear and convincing evidence supports the ground for termination cited by the juvenile court, we reverse the termination of Amanda's parental rights.
Amanda also contends termination is not in Pearl's best interest because they are bonded. The evidence is that they are. Iowa Code section 232.116(3) gives the juvenile court discretion not to terminate a parent's rights if there "is clear and convincing evidence that the 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). Because we have reversed the termination, we need not address this contention.