Opinion
No. 3-702 / 03-1290
Filed October 15, 2003
Appeal from the Iowa District Court for Black Hawk County, Jeffrey L. Harris, District Associate Judge.
A mother appeals the termination of her parental rights to two of her three children. REVERSED AND REMANDED.
Laura Langenwalter of Ackerman Law Office, Waterloo, for appellant-mother.
Dennis Guernsey, Waterloo, for father.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Steven Halbach, Assistant County Attorney, for appellee-State.
Dawn Newcomb, Waterloo, guardian ad litem for minor children.
Considered by Sackett, C.J., and Miller and Hecht, JJ.
Alexandria, the single, twenty-four year old mother of Stephen, born April 4, 1999, Mercedes, born August 29, 2001, and Timothy has filed a petition on appeal challenging the July 11, 2003 order terminating her parental rights to Stephen and Mercedes. Timothy, who is younger than the two children at issue, lives with his mother and has remained in her care since his birth. Alexandria contends the termination should be reversed or we should order full briefing. The parental rights of the father of the children who was incarcerated at the State Correctional Facility in Fort Dodge at the time of the termination hearing were also terminated and he has not appealed. We reverse the termination.
Alexandria was placed outside her parental home at age thirteen. She was in five different facilities and her birth family received a series of services. Despite the number of services provided, she has not fared well. She has been suicidal. She is at times stubborn, defiant, combative, and resistant to authority-traits probably not uncommon for a woman such as Alexandria who, as a teen-ager was moved in and out of residential facilities and had a poor relationship with her birth family. She has abused legal and illegal substances. She is intelligent, has graduated from high school, and has shown considerable love for her three children. Despite her sometimes defiant attitude, she has successfully completed programs in parenting and related issues.
Apparently at the time of her children's births Alexandria was identified as a mother at risk. She was visited at home and followed up by visiting nurses and Iowa Department of Human service personal and received services. She began participating in Family Centered Services, and was provided parenting skill and family therapy by Mid Iowa Family Therapy Clinic in Waterloo. It was reported that her services were closed because she had received maximum benefits.
Reports on file indicate a Child Protective Assessment Summary was prepared by the Department of Human Services following an April 5, 2002 intake. The summary reported Alexandria and Stephen's father had been evicted from a two bedroom apartment that, while lacking in certain areas, did provide for the family's basic needs. Following the eviction the family could not be located. The report further indicated the parents appeared to be caring and concerned and indicated they were willing to continue with services. Stephen was reported to be a healthy child though there were concerns about his language development. He was seeing a doctor for breathing problems and ear infections. Mercedes was reported to be a healthy child with no known physical or behavior disabilities.
In June of 2002, the children were removed from their parents' care because both parents had allegedly violated a no contact order and were jailed. Following the eviction the family had lived with relatives. At the time of the removal they were staying in a tent on private property. At the time they were removed from their parents' care, both children were healthy.
The State in its brief reports there had been three registered reports of child abuse, although apparently not all of these were founded, and concerns of methamphetamine use and domestic violence. Few specifics are provided about these events, which apparently were not the reason for the removal.
On July 12, 2002, the children were found to be children in need of assistance and about this time were placed in a second foster home. While the children were in foster care Alexandria has had four-hour, weekly supervised visits with them. She has attended all the visits and has been on time. There are extensive reports on the visits and, while there was at times chaos and Alexandria was not always consistent in interacting with the children, nothing would indicate the children were in harm's way. Alexandria, following the removal, had counseling at Blackhawk/Grundy Mental Health, although the record is unclear as to the extent of counseling she received there, and apparently she did not follow up with all appointments. She has been involved in the Head Start Hands-In-Hands Program, where a worker came into her home once a week for an hour to show her how to react with Timothy. She sought through her attorney increased visits with the children. The visits were not increased.
Lisa Stanhope, who holds a Bachelor's in social work and is employed as a therapist and as a person who supervises visits for development and therapy services with Mid-Iowa Family Therapy testified. She testified she had been providing community services for nine years and began working with Alexandria in July of 2002. She supervised Alexandria's visits with her children and also was in telephone contact with Alexandria. The visits were held in a number of places. She explained Alexandria was always happy to see her children and she had scheduled activities like reading books or playing with toys. She said at times Alexandria interacted fine with the children and played with them, but that other times she would monitor them from a chair and, if her relatives were there which they frequently were, she would depend on them to help her parent the children. She said Alexandria was not always consistent, sometimes using threats for bad behavior that she did not carry through and sometimes using time outs, but the majority of the time she does not use time outs. She said the children could not be returned, for while Alexandria had found housing with her sister, Alexandria and her sister have conflicts. She was critical of Alexandria's inability to find housing and employment. She recommended termination.
Toni Brown, a Social Worker II with the Department of Human Services for thirteen and a half years, recommended termination of parental rights, indicating Alexandria lived a nomadic life and was not consistent in her parenting of the children and in obtaining mental health treatment. She was of the opinion the children would be in danger if returned to their mother's care. Brown recognized that during her supervision Alexandria had, until several weeks before the hearing, lived in the same residence. Brown was concerned about the number of prior addresses Alexandria had and the fact she was not able to obtain housing on her own without the help of family members. Brown spent only a short time viewing the supervised visits and considered them chaotic.
Deborah Murphy, a registered nurse for thirty years who works at Allen Hospital and who also for the past six years has done home care, first worked with Alexandria when her first child was born. She had initial concerns about Alexandria bonding with the baby, but those issues were resolved. She became involved again when the child was hospitalized for bronchitis and she worked with Alexandria for two or more months and visited her home once or twice a week to teach her about medication and childcare. Murphy had a concern at one time because Alexandria had not had a prescription filled. Murphy also followed up with the second child and worked with Alexandria for about two months. Murphy also has been involved with Timothy, and was asked:
Q. And what are her [Alexandria's] parenting abilities now? A. Very good. I feel real comfortable with how she's doing with Timothy. She bonded very well with him. She's very appropriate with him, much improved from previously.
Q. What types of skills do you work on with Alexandria that she needs to do for the baby? A. It has more to do with medical things, you know, growth and development things, preventative things, things that she needs to watch for, things she would need to call the doctor about, you know, indicators that the child might be getting sick, that she'd need to call.
Q. And has she followed through with these methods? A. Yes.
Q. During the time that you were working with Alexandria, did you see her with Stephen and Mercedes? A. Yes
. . . .
Q. Can you explain that interaction for us? A. It was a short interaction, just because you know it was less than an hour and it was supervised. At that time, I thought everything was appropriate. She was interacting well with all three children.
Q. If Stephen and Mercedes were returned to her care do you feel that she would be able to utilize the skills you've taught her, to make sure they were medically cared for? A. Yes.
The juvenile court discounted Murphy's testimony because she had only seen Alexandria interact with Stephen and Mercedes for an hour during a supervised visit.
Lorene Reeves, who is employed by Allen Home Health making visits mostly with maternal/child patients and pediatric patients for eleven years, also testified she first became involved with Alexandria when Stephen was born. Reeves found Alexandria at that time a bit distracted and slow on making doctor appointments. Reeves blamed part of the problem on a boyfriend who lived with Alexandria at the time. Reeves testified she had visited with Alexandria eleven or twelve time since Timothy was born and said Alexandra has made a drastic change for the better in taking care of Timothy and in following through with doctor appointments. Reeves indicated she visited twice with Timothy while Stephen and Mercedes were visiting with Alexandria. Reeves was of the opinion that if Stephen and Mercedes were returned to Alexandria, she has the appropriate skills to follow up with medical treatment. Reeves was asked about Alexandria's strengths in parenting and said Alexandria loves her children, is more caring, has put the children first, and would ask questions and call if she had concerns. She also testified to a time when Alexandria's sister brought Timothy to the hospital and the sister did not know where Alexandria was, but Reeves indicated that other members of the family did know Alexandria's whereabouts, and it was only the sister who did not. The juvenile court discounted her testimony because it found Reeves said on cross examination that she was not sure Alexandria could meet any non-medical needs of the children. Reeves was asked on cross-examination as follows:
Q. Do the children have more than medical needs? A. Yes.
A. You've never seen her follow through for any of the other types of needs the children have, have you? A. No.
Q. So, you don't know if she would be able to do that, do you? A. No.
Since her children were placed in foster care, Alexandria has been watching her sister's two children, who are about the ages of the children whose interests are at issue here.
Alexandria lives at the poverty level. She was on SSI from the time she was eighteen years old until December of 2001. It was terminated when she failed to meet appointments for tests. She has, with her grandmother's help, made additional application to continue it; however, currently it has been denied. She receives FIP for one child in the amount of $361 a month plus $184 in food stamps, and the amount would be increased if the other two children were in her custody. She is not employed. There is no evidence she has any resources to rent a home.
At the time of the termination hearing, Alexandria and Timothy were living with Alexandria's sister and child in a two bedroom apartment. Timothy slept in a crib and Alexandria slept on the living room floor. Housing clearly has been a serious problem for Alexandria. She does have extended family in the Waterloo area and it appears at times she lives with them, though that is not always successful.
A termination petition was filed February 20, 2003 and amended June 17 of the same year. A hearing was held on June 27 and the termination order issued on July 11. The juvenile court terminated her parental rights under Iowa Code sections 232.116(1)(e), (f), and (h). Alexandria admits in her brief that subsections (1) and (2) of section 232.116(1)(e) have been met.
These sections provide as follows:
232.116. Grounds for termination
1. Except as provided in subsection 3, the court may order the termination of both the parental rights with respect to a child and the relationship between the parent and the child on any of the following grounds:
. . . .
e. The court finds that all of the following have occurred:
(1) The child has been adjudicated a child in need of assistance pursuant to section 232.96.
(2) The child has been removed from the physical custody of the child's parents for a period of at least six consecutive months.
(3) There 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 despite being given the opportunity to do so. For the purposes of this subparagraph, "significant and meaningful contact" includes but is not limited to the affirmative assumption by the parents of the duties encompassed by the role of being a parent. This affirmative duty, in addition to financial obligations, requires 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 requires that the parents establish and maintain a place of importance in the child's life.
f. The court finds that all of the following have occurred:
(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'sparents 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.
. . . .
h. The court finds that all of the following have occurred:
(1) The child is three years of age or younger.
(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 six months of the last twelve months, or for the last six consecutive months and any trial period at home has been less than thirty days.
(4) There is clear and convincing evidence that the child cannot be returned to the custody of the child's parents as provided in section 232.102 at the present time.
The issue is whether the State has shown by clear and convincing evidence that the child cannot be returned home.
We review de novo. In re A.Y.H., 508 N.W.2d 92, 94 (Iowa Ct.App. 1993). The State has the burden of proving the grounds for termination by clear and convincing evidence. See In re T.A.L., 505 N.W.2d 480, 483 (Iowa 1993). A parent has the right to due process and a fair trial when the State seeks to terminate parental rights. In re R.B., 493 N.W.2d 897, 898 (Iowa Ct.App. 1992); see also Alsager v. Iowa Dist. Court, 406 F. Supp. 10, 22 (S.D.Iowa 1975). A parent has the right to have custody of his or her child terminated only with the utilization of the required constitutional safeguards. See Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042, 1045 (1923); In re T.R., 460 N.W.2d 873, 875 (Iowa Ct.App. 1990). 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).
The focal question is whether these children can be returned to Alexandria's care. As the attorney for the State at trial recognized, the evidence on this issue is conflicting. The two visiting nurses who have worked with Alexandria since Stephen's birth support the children's return to their mother while the social workers on the case do not.
Clearly Alexandria currently does not have adequate housing for her three children. The guardian ad litem argued for termination, contending that, "She [Alexandria] has been walked through a system that told her specifically a requirement to reuniting you with your children is maintain stable housing and obtain employment so you can provided for these children." Alexandria lives at the poverty level even with the assistance she receives for Timothy. She will qualify for further aid if the children are returned to her. The guardian ad litem was critical of Alexandria's failure to get a job and living in some thirteen homes since Stephen was born. She argued that the most important thing for children to have, irrespective of the money or education they had, was to show them a work ethic. She said Alexandria insists on living off other people and the government and Alexandria gives no reasons other than she just cannot get a job. She noted Alexandria has $361 a month for her third child and if she gets the other two back she will have up to $600 a month and still will not be working.
The juvenile court said it seriously doubted that Alexandria could live on $600 a month if she got the two other children back.
The guardian ad litem, concerned about Alexandria's failure to get a job argued, "To me, that is not providing a secure and stable environment for any child." She also argued Alexandria has mental health issues and, as a result of her being off medication since she was seventeen, her thinking has become distorted and she is not able to grasp the role of a parent. She argued Alexandria does not consider things like safety and medical needs important.
This is a difficult case. There is conflicting evidence from persons with certain expertise in the field of assessing children's care givers as to Alexandria's ability to care for the children. The visiting nurses, who have been involved with her for a longer time than the testifying social workers, believe she can care for the three children. They have no concern about her care of Timothy. Alexandria is without sufficient financial resources to care for three children. She is not readily employable and even if employed it is doubtful she would, without further education or training, earn sufficient income to allow her to pay for child care and have sufficient monies to provide for the material needs of her three children. While we agree with the juvenile court she would have a difficult time raising her three children on an FIP payment, this is what the government provides. Poverty alone is not a sufficient reason to terminate parental rights. Currently Alexandria is in a difficult situation. Housing clearly has been a serious problem. There is no evidence Alexandria has received assistance in obtaining housing nor is there evidence she has requested nor been offered assistance from the Department. Throughout these proceedings the obligation to obtain housing for three children has been Alexandria's alone. She must rely on others for transportation, having made a bad choice in loaning her car to someone who did not return it. Without the other two children in her custody, Alexandria has an FIP allowance based on her having custodial care of an infant. Consequently, she does not have the money to obtain housing. But she cannot qualify for aid to help obtain housing for three children until she has custodial care of the three children.
However, it is doubtful that her current allowance is sufficient for her to maintain and insure an automobile.
The State has terminated the parental rights of the children's father. He is incarcerated without a source of income, but even when he is released he has no financial responsibility to the children because his rights have been terminated.
The father's attorney had argued, "if the court does not terminate the parental rights of the mother in this case, it would serve as a disinterest to the children to terminate my client's parental rights, because he ahs a history of employment, as I understand it, and it would just be cutting off a potential source of child support." This argument illustrates the disadvantage to children if both parents' rights are terminated and only one appeals. It also illustrates the need to recognize that, even if a parent should be terminated for his or her conduct, their rights to custody or visitation can be stopped but they should continue to be responsible for support of the child unless an adoption where the adoptive parents assume all future support occurs.
The State advances that, if parental rights are terminated, the children are adoptable and it appears the State's plan is to send the children to Oklahoma to be adopted by an aunt on their father's side and her paramour.
The children were healthy when they were removed from Alexandria's care. She has exercised all visits. She has a child in her care whom she is giving adequate care.
We walk a tight rope in assessing these cases. Alexandria loves her children. She does not personally have the financial resources to meet their needs. She is not the best parent, but she has been an adequate parent. The visiting nurses are of the opinion she can succeed. The children were healthy when removed from her care. She has maintained contact with her children while they were in foster care. While she needs different housing for three children, if they are returned to her care and her assistance is increased, there is no evidence she would not qualify for low rent housing. There is not clear and convincing evidence supporting the termination. We reverse and remand.