Monthly Archives: July 2012

The Iowa Court of Appeals recently affirmed  the decision of a Hamilton County Court to dismiss the child support modification application of Amy Eger.  Ms. Eger and her former husband Michael married in 1997 and had 2 sons.  Their stipulated divorce decree included shared legal custody and joint physical care of their children.  Because the couple earned similar incomes and was sharing the responsibility of their sons’ care, neither party was required to pay child support.

Application to Modify Child Support

Two years after the divorce decree was entered, Amy filed an application seeking to increase Michael’s child support amount from $0 to $240.78.  Amy claimed that the original arrangement differs more than 10% form the Iowa child support guidelines.  Alternatively, Michael testified that he does indeed already pay to support his son’s sports activities and contributes financially when he has physical care of the boys every other week.  He also argues that their individual incomes have not changed since their divorce.  (He earned approximately $40,000 and she earned approximately $33,000).

Analysis of the Court in Affirming Decision to Dismiss Child Support Modification Application

The Iowa Court of Appeals reviews child support modification proceedings de novo.  The “de novo” standard of review means that the court will consider all legal and factual issues anew, giving weight to the trial court’s findings of fact, especially the credibility of witnesses, but are not bound by the court’s findings.

Modifying Child Support Orders

“Substantial Change in Circumstances”

To successfully modify child support in Iowa, Amy must establish there has been a “substantial change in the circumstances of the parties” since the time of the decree.  The decree that was originally entered was final as to the circumstances existing at the time.  Therefore, if there is a substantial change in those circumstances, the court will be allowed to modify the amount of support originally set.

“Injustice” or “Failure to do Equity”

In addition to the substantial change in circumstances, Amy must also establish that continued enforcement of the original child support order would result in a wrong or injustice.

In denying Amy’s application for support modification, the District Court found that there was a 10% difference between what Michael should be paying and what he was required to pay.  However, unfortunately for Amy, this difference existed at the time the decree was stipulated to.  Therefore, the court decided that to apply the child support guidelines at this point, and not earlier when the decree was agreed upon would be inequitable.

Regretting the Original Decree

The Appeals Court concludes that Amy, “now regretting at the time of divorce, seeks to use a “mechanical” application of the Iowa Code to get out of her commitment.”  The court explains that all of the circumstances that are now true, were also true or could have been reasonably anticipated when the original divorce decree was agreed to.  Ultimately, they find that Amy has not established a substantial change in circumstances to justify a modification to the child support agreement.

The court also finds that the continued enforcement of the decree requiring neither party to pay support does not result in any wrong or injustice.

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The Best Interests of the Child

Recently, the Huffington Post featured an editorial posing the question, “Child Custody:  In Whose Best Interest?”  The title of this article is referencing the guideline judges use to make decisions in cases involving children.  The best interests of the child, along with statutory requirements, are certainly the central concern in Iowa cases  involving children such as CINA (Child(ren) in Need of Assistance) cases and child custody cases.  The factors taken into consideration when deciding what is in the best interest of children are explained in several different Iowa Code Sections such as:  Child Custody and Termination of Parental Rights.

The Problem of Voiceless Children in Today’s Child Custody Plans

In her article, Dr. Ruth Bettelheim, Ph.D., points out the ways in which our current child custody plans and our current court system fail to take a child’s best interest into full consideration.  Dr. Bettelheim argues that our current system actually caters more to parents than children.  She points out that children’s needs change as they grow older, however, at this point, their schedules are dictated by the needs and conveniences of their parents.  Unless the custody plan is changed at some point, which can be a difficult and costly process for parents, it will remain the same until the child reaches the age of 18.

Because children are not routinely or officially put in charge of deciding where they would like to live and how much time they would like to spend at each parent’s residence, many children feel as if they have no power over their own lives.  Dr. Bettelheim believes that we should be concerned about this because it takes away children’s voices and creates burdens on their relationships not only with their parents but also their friendships that are so important as they grow.  She believes this can be detrimental to children and may also lead to provocative or damaging behavior by the child.

Some may be surprised to learn that, generally, children have reached the “age of reason” (according to most in the judicial system) by age 7.  Although we recognize this young age as a time when a child is able to make reasoned decisions about their lives, it is not reflected in how we create and maintain child custody plans in our courts.

Increased Reviews of Child Custody Plans as a Solution to Powerless Children

Dr. Bettelheim believes that there should be a mandatory, regular review of all child custody plans as children grow older.  She also believes that children should be given much more power in deciding their own fates when it comes to where they live and who they live with.  She believes there should be a formal outlet for them to voice their wishes concerning their custody.  Dr. Bettelheim does qualify this suggestion by stating that the child’s decisions need to be taken into account along with how they are performing in school, how they are functioning at home, and what their inter-personal relationships are like.

Consequences of Increased Reviews of Child Custody Plans

Dr. Bettelheim’s plan would certainly increase children’s decision-making power, but it would also cause confusion and inconsistency in child custody plans.  It raises questions as to what happens when siblings within the same family wish to have very different living arrangements, or what if a child is functioning well in school, but not at home?  Do they have the same ability to make decisions as a child who is falling short at school?  Having more and regular reviews of child custody plans would also cause more delay and backup in an already overloaded court system.  Is having more court hearing s even logistically possible?

Use of Mediation in Child Custody Plan Reviews

One possible solution to this problem of ignoring children’s decision-making power may be to utilize mediation services more regularly.  Participation in mediation would allow children a voice in their futures as well as provide a much less confrontational and much less intimidating environment to express their wishes than a courtroom.  Mediation would also allow many of these reviews of custody plans to stay out of the court system.  Use of alternative dispute resolution services, especially mediation, would also be much less costly for families than having several court hearings to decide custody arrangements.

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The decrease in the amount of marriages and the change in what a family unit looks like in the United States has prompted lawmakers in CA to propose a bill that would allow a child to have more than two parents.  The New York Times reported last week on a bill that has passed the California Senate with Democrats voting for and Republicans against.

Increasing Number of States Recognizing Third Parents

This may seem like a revolutionary idea – for a child to have more than two parents, however, there are several states that have recognized similar situations in recent years.  As the NY Times reports, Delaware and the District of Columbia have passed laws that allow for third “de facto” parents.  Other states such as Oregon

“Non-Traditional” families may gain increased legal recognition if recently introduced California legislation becomes law.

and Massachusetts have had their courts recognize third parents throughout the last decade.

The CA bill would allow judges to acknowledge that a child has more than two legal parents.  This recognition would allow families that include same-sex couples to have legal relationships where they may not have been able to previously.  There are many possibilities for today’s varied family structures to have more security – insurance, schools, hospitals, etc. would all be more accessible to people acting as parents because they would now be able to be legally recognized as parents.

The bill would not only benefit families that include a same-sex couple.  For example, if a husband and wife divorce, this bill would allow the new spouse of either biological parent to be able to adopt any children from the previous marriage without having to terminate the parental rights of the biological parent.

Opponents of Recognizing Third Parents

Opponents of the law have concerns however.  They believe that this bill would “open the door” to same sex marriage, which they believe is wrong.  Critics also point out the confusion this could cause when it comes to child support payments.  It isn’t clear at this point what the effects would be on child support, however, it seems that it could only be beneficial to the child to have more sources of child support available.  The recognition of additional parents may also reduce the incredible stress on many state foster care systems because there would be more relatives available for placement when children are removed from their homes.

Opponents are also wary of slippery slope situations where a child could have a dozen parents, or more.  However, the bill does not seem to allow a free for all – it allows a judge to recognize an additional legal parental relationship between an adult and a child in addition to the child’s biological mother and father.  The judge would have to find that the recognition of this additional parent is in the child’s best interest.

Recognizing a Third Parent in Iowa

Currently, Iowa is not one of the states that recognizes a third parent relationship.  When child custody is an issue in Iowa,

Iowa law requires that the court, “insofar as is reasonable and in the best interests of the child,” shall order the custody award, including liberal visitation rights where appropriate, which will assure the child the opportunity for maximum continuing physical and emotional contact with both parents after the parents have separated and dissolved the marriage, and which will encourage parents to share the rights and responsibilities of raising the child unless physical harm or significant emotional harm to the child, other children, or a parent is likely to result from such contact with one parent.

As in other states, it is unclear how the recognition of a third parent would change child custody practices in Iowa.  A bill similar to the CA bill has not yet been introduced in Iowa, however, if the CA bill is successful, it may open the door for such legislation in other states, including Iowa.

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Recently, CNN reported on a disturbing story  involving a set of Egyptian parents in a United Arab Emirates airport who, rather than waiting for their son’s visa paperwork to process, decided to put him in one of their suitcases and continue with their travels.  Their 5 month old son was discovered by a baggage x-ray machine and had been in the parent’s carry-on luggage.  The boy was reportedly in good health when found, however, the airport police reported that this was the first incident of its kind.

Child Abuse in the Middle East

The United Arab Emirates is a country consisting of a federation of seven emirates with a single national president.  With just a quick Google search, one can find many child abuse stories originating in this part of the world.  Although it does sound like efforts to minimize and eliminate child abuse are increasing, the religious and political institutions that exist in the middle east may make it more difficult to control.  Many acts that would be considered criminal in the United States (and even in the middle eastern countries) are kept secret within families because of a concern to protect an individual’s or a family’s honor.

Child Abuse in Iowa

Here in Iowa, Code section 232.68  provides the definitions of what is considered child abuse.  The Department of Human Services (DHS) has the legal authority to conduct an assessment of child abuse when it is alleged that:

  • The victim is a child
  • There has been:
    • Physical Abuse
    • Mental Injury
    • Sexual Abuse
    • Child Prostitution
    • Presence of Illegal Drugs
    • Denial of Critical Care
    • Manufacturing or Possession of a Dangerous Substance
    • Bestiality in the Presence of a Child
  • The abuse is the result of the acts or omissions of the person responsible for the care of the child

If the incident that occurred in the United Arab Emirates had happened in Iowa, it certainly could have been reported to DHS for physical abuse of a child as well as the denial of critical care.

Reporting Child Abuse in Iowa

If you believe you have witnessed child abuse in Iowa, call the Child Abuse Hotline at 1-800-362-2178.  It is available 24 hours a day and 7 days a week and you may remain anonymous if you choose.  However, if the child is in imminent danger, it is important that you call 911 immediately.

 

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The Iowa Court of Appeals recently decided a case that involves several points including child custody, visitation and support.  The case is brought on appeal by Daniel Moyer from the Iowa District Court for Pottawattamie County.  Daniel and his ex-wife Ashley Moyer were married in March of 2008 and had previously had a son, Gabriel, born in July 2006.   They divorced in June of 2010.  All of the issues were decided and included in the couple’s dissolution of marriage decree.

 In Re the Marriage of Ashley Moyer and Daniel Moyer

The couple lived with Dan’s parents rent and expense free while Ashley was pregnant with their child and after the birth when married.  The court finds that although living with Dan’s parents, both Dan and Ashley were ambitious and industrious.  Dan went to school for an associate’s degree in math while Ashley took care of their child and eventually attended culinary school and worked in food service.

When Dan and Ashley separated, Ashley moved out of her in-law’s home with Gabriel, however, Dan continued to care for Gabriel at night while Ashley worked.  Approximately a year later, Dan moved to Laramie, Wyoming to pursue a degree in petroleum engineering at the University of Wyoming.  He lived with his girlfriend and her child.  Ashley continued to live and work in Council Bluffs.

The divorce decree, entered August 23, 2011, granted physical care to Ashley with Dan receiving visitation when he is in Iowa, along with 6 weeks of visitation in the summer and over the Christmas holidays.  Dan was ordered to pay $195.13 per month in child support.  Soon after the decree was entered, Dan filed a combined motion for new trial, expanded findings, and interpretation.

 Court of Appeals Reviews District Court’s Child Custody, Visitation and Support Decision

 Child Custody

The Court reviews child custody decisions de novo, meaning they examine the entire record and make new judgments on each issue presented.  They will give strong consideration to the district court’s findings of fact.

In favor of his being granted child custody, Dan argues that he is the more stable parent, he had been the primary caregiver, the proximity of Gabriel to his grandparents was relied too heavily upon by the district court, and that Ashley disregards his role as a parent.  The court views all of these arguments in the light of what is in the best interest of the child.  The factors set forth in Iowa Code section 598.41(3) (2009) guide the court:

 

3.  In considering what custody arrangement under subsection 2 is in the best interest of the minor child, the court shall consider the following factors:

 

a.  Whether each parent would be a suitable custodian for the child.

b.  Whether the psychological and emotional needs and development of the child will suffer due to lack of active contact with and attention from both parents.

c.  Whether the parents can communicate with each other regarding the child’s needs.

d.  Whether both parents have actively cared for the child before and since the separation.

e.  Whether each parent can support the other parent’s relationship with the child.

f.  Whether the custody arrangement is in accord with the child’s wishes or whether the child has strong opposition, taking into consideration the child’s age and maturity.

g.  Whether one or both the parents agree or are opposed to joint custody.

h.  The geographic proximity of the parents.

i.  Whether the safety of the child, other children, or the other parent will be jeopardized by the awarding of joint custody or by unsupervised or unrestricted visitation.

j.  Whether a history of domestic abuse, as defined in section 236.2, exists.  In determining whether a history of domestic abuse exists, the court’s consideration shall include, but is not limited to, commencement of an action pursuant to section 236.3, the issuance of a protective order against the parent or the issuance of a court order or consent agreement pursuant to section 236.5, the issuance of an emergency order pursuant to section 236.6, the holding of a parent in contempt pursuant to section 664A.7, the response of a peace officer to the scene of alleged domestic abuse or the arrest of a parent following response to a report of alleged domestic abuse, or a conviction for domestic abuse assault pursuant to section 708.2A.

In regards to being the more stable parent, the court finds nothing with regard to Ashley’s employment or living situation that would hamper her ability to care for Gabriel.  In fact, they agree with the district court’s determination that Ashley actually provides the more stable environment that includes Gabriel’s grandparents.

The court also rules in Ashley’s favor in regards to the question of who was Gabriel’s primary caregiver.  The court finds that both parties are capable of caring for the child.  At trial, Ashley testified that she was in fact the primary caregiver and Dan agreed.

Dan’s argument that the district court relied too heavily upon the proximity of Gabriel to his grandparents also did not survive.  The court discusses the fact that Dan could have chosen to attend school at a University only 3 hours away that offers the same program that he is enrolled in at the University of Wyoming.  They find that although Ashley’s plans may change, at the present time, she is planning to remain in Council Bluffs near Gabriel’s extended family.  The court does not believe that the district court placed too much importance on this factor.

Finally, the court finds that although Ashley could have made better efforts at communication on certain issues with Dan, Ashley and Dan have actually been able to work together in the past.  The minor communication glitches do not warrant a finding that Ashley disregards Dan’s role as parent.

Overall, the court of appeals agrees with the district court that it is in the child’s best interest to place physical care of Gabriel with Ashley.  They mention that Dan’s decision to attend school 8 hours away from his extended family tipped the balance in favor of Ashley.

Child Visitation

Just as with child custody, the child’s best interest is the main consideration of the court when ruling on visitation.  Iowa Code section 598.41(1) guides their decision:

598.41  CUSTODY OF CHILDREN.

1. a.  The court may provide for joint custody of the child by the parties.  The court, insofar as is reasonable and in the best interest of the child, shall order the custody award, including liberal visitation rights where appropriate, which will assure the child the opportunity for the maximum continuing physical and emotional contact with both parents after the parents have separated or dissolved the marriage, and which will encourage parents to share the rights and responsibilities of raising the child unless direct physical harm or significant emotional harm to the child, other children, or a parent is likely to result from such contact with one parent.

Dan argues that the visitation schedule in the decree fails to maximize contact with both parents.  He requests additional visitation in his appeal.  He also asks for improved telephonic and electronic communication with Gabriel.  Dan also complains that the burdens of travel are placed on him.

In order to provide maximum contact with both parents, the court modifies the decree so Dan receives additional visitation during Thanksgiving and Spring Breaks.  The court also agrees that it would be fair for Ashley to have to share in the expense of Dan traveling to see Gabriel in limited circumstances.

 Child Support

The final issue the court considers is the amount of child support Dan is required to pay.  In Iowa, child support is determined by guidelines set forward by the Iowa Supreme Court.  The court determines both parent’s monthly income to arrive at the amount of child support owed.  The court decides that Dan is capable of working part time despite his demanding school schedule and that the student loans he voluntarily took out may be applied to his monthly income.  The court requires Dan to pay $195.13 in child support.

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The New York Times recently reported that new developments in blood tests will allow the paternity of a child to be determined long before the child’s birth.  New blood tests could possibly determine the identity of the child’s father during the 8th or 9th week of pregnancy without the invasive procedure and risk of an amniocentesis.  Amniocentesis is a procedure in which amniotic fluid is removed from the uterus, carrying a risk of miscarriage or other complications.

Implications of Early Paternity Testing

Knowing who the father is sooner will certainly have implications.  It will allow a woman to terminate a pregnancy with an undesired man sooner than ever before, or continue the pregnancy if the father is someone she prefers.  Also, the early knowledge of paternity may cause the father to be more willing to provide emotional and financial support to the mother during pregnancy.  This increased financial and emotional support could lead to healthier mothers and babies.

One legal implication, The Times reports, is that if the tests gain legal acceptance it will allow women and states to pursue child support payments much earlier than they do presently.  This may also allow the couple to come to an agreed settlement on child support before the child is born, reducing stress on the mother and court proceedings after the child is born.

Accuracy, Methodology, and Cost of Early Paternity Test

The test could be difficult to administer, however, because the putative father needs to provide a blood sample in addition to the mother.  The tests determine the paternity of the child by analyzing fragments of DNA from the fetus that are present in the mother’s blood in tiny amounts.  None of these early tests that are being offered have received a certification for accuracy that would make them acceptable to a court.  The tests are being offered by a few companies and range in price from approximately $1,000 to $1,800.  A typical post-birth paternity test usually costs around $500.

Social Controversy Involved with Using Early Paternity Tests

If courts and other entities begin to use these paternity tests, they could cause quite a controversy.  Because the tests could lead to more abortions, there may be many religious and anti-abortion groups that will surely have concerns.  However, the tests could lead to more continued pregnancies if women find out the father is who they hoped.  For example, if a woman had been raped and she found out the rapist was not the father, she may very well decide against abortion.

Surely, blood test technology will progress so that these tests are a viable option for women who need them.  It remains to be seen, however, whether society will accept their use in official capacities.

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Actress Katie Holmes filed for divorce from her husband of 5 years, Tom Cruise, last Thursday.   The pair met and married quickly and have been the subject of Hollywood speculation for the duration of their relationship.  Holmes, 33, has one 6 year old daughter, Suri, with Cruise.  Cruise has two adopted children from a previous marriage with actress Nicole Kidman.  It has been reported that Cruise was surprised to learn of Holmes’ filing.  This is the end of Cruise’s 3rd marriage, while Holmes’ first.

Fault vs. No Fault Divorce

Holmes filed for divorce in the state of New York.  There has been much speculation as to her motivation for filing in a “fault” divorce state.  In New York and other states that allow a petitioner to file for divorce on fault-based grounds.  In New York, you may file for a fault-based divorce based on several  grounds:

  • Cruel and Inhuman Treatment
    • Physical, verbal or emotional abuse that endangers your physical or mental well being.
    • The judge will look for occurrences in the last 5 years.
  • Abandonment
    • Your spouse must have abandoned you for a period of one or more years.
    • “Constructive Abandonment” is applicable if your spouse has refused to engage in sexual relations with you for a period of at least one year.
  • Three Consecutive Year Imprisonment
    • The imprisonment must begin after the marriage and last for a period of 3 consecutive years.
  • Adultery
    • Must be able to show that your spouse committed adultery during the marriage, which can prove to be difficult.

In Holmes’ and Cruise’s case, there is, of course, much speculation as to why Holmes would have filed in New York.  Many believe that Cruise’s intense commitment to Scientology may have played a role in their split.  In the petition, Holmes has claimed that the couple is unable to continue the marriage because of irreconcilable differences.  Cruise is expected to file a response in New York requesting the proceedings be moved to California.

Cruise and Holmes have a pre-nuptial agreement, so financial considerations will most likely not be a major issue in their divorce.  Holmes could challenge the agreement, however, the main issue will almost certainly be custody of their daughter.  Holmes has filed for sole custody of Suri along with an “appropriate” child support amount.

Iowa:  a No Fault Divorce State

Iowa is considered a no-fault divorce state.  The Iowa Code addresses dissolution of marriage in Chapter 598.

Officially called “dissolution of marriage” in Iowa, a divorce will be granted when there is evidence of a breakdown of the relationship with no likelihood it can be preserved.  There is no requirement for a spouse to place blame on the other spouse.  After filing for dissolution, a judge may require the couple to participate in conciliation efforts for a period of up to 60 days.  For example, Polk county requires the couple to participate in mediation.  Iowa Code section 598.7 addresses this requirement.  Also, there is a 90 day waiting period in Iowa from the time of filing until a judge can issue a final decree, although this requirement may be waived under certain circumstances.

It remains to be seen just how nasty Tom Cruise and Katie Holme’s divorce will be, however, we can be assured that whatever happens, there will be intense media coverage of every detail!

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The Iowa Supreme Court recently entered a ruling affirming the judgment of a Polk County Juvenile Court and vacating a Court of Appeals Ruling.  In the Interest of A.B. & S.B. is a case involving a termination of a father’s parental rights to two children pursuant to Iowa Code section 232.116(1)d), (g), (h), and (l) (2011).

Father’s History of Drug Abuse

The father of the two children, Silverio, has a chronic substance abuse problem.  He also has been the subject of six founded reports of child abuse and has a lengthy criminal conviction history involving assault and possession of controlled substances.  Silverio has also previously had his parental rights terminated as to another child.  Nelda is the mother of the children.  She and Silverio were never married and are no longer together, their relationship filled with drugs and domestic violence.

The children involved S.B., A.B. (as well as their younger half brother, D.G.) came to the attention of DHS in November of 2010.  There were concerns about their medical care, or more accurately the lack thereof, as well as housing instability, illegal drug use in the home and truancy issues.  DHS offered services to Nelda, who the children were living with.

Eventually, the children were removed from Nelda’s care and were living with Silverio, who then was arrested on drug charges.  On the day of his arrest, the juvenile court removed the children and placed them in foster care.  Nelda was subsequently arrested for identity theft.  The children were determined to be Children in Need of Assistance (CINA) pursuant to Iowa Code Sections 232.2(6)(c)(2) and (n) (2011).  After hair stat testing, unfortunately Nelda and all three children tested positive for methamphetamine.  Silverio shaved his head and was unable to provide a sample for the test.

DHS Provides Services to Facilitate Reunification

As in other Termination of Parental Rights cases, DHS provided services for the children and Nelda to facilitate reunification.  Silverio continued to exhibit destructive behavior, getting arrested for domestic abuse assault and testing positive for meth in a urine test.  However, after this arrest Silverio began to make progress by attending classes, family team meetings, and testing negative for illegal drugs.  He completed drug treatment and a mental health evaluation.  Unfortunately, Nelda did not show such progress and remained in jail.

Silverio obtained employment, resumed regular visitation with the children, attended therapy sessions, and communicated with the daycare center.  DHS remained concerned, however, stating that Silverio had problems with lying and a lack of insight into his domestic abuse, anger and drug issues.   The State recommended termination of Silverio’s parental rights.  After testifying and requesting more time to obtain custody, Silverio tested positive for methamphetamine.  The juvenile court terminated Silverio’s (and Nelda’s) parental rights.  Silverio’s parental rights were terminated pursuant to Iowa Code section 232.116(1)(d), (g), (h), and (l):

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:
      • d.  The court finds that both of the following have occurred:
        • (1)  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.
        • (2)  Subsequent to the child in need of assistance adjudication, the parents were offered or received services to correct the circumstance which led to the adjudication, and the circumstance continues to exist despite the offer or receipt of services.
    • g.  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 court has terminated parental rights pursuant to section 232.117 with respect to another child who is a member of the same family or a court of competent jurisdiction in another state has entered an order involuntarily terminating parental rights with respect to another child who is a member of the same family.
      • (3)  There is clear and convincing evidence that the parent continues to lack the ability or willingness to respond to services which would correct the situation.
      • (4)  There is clear and convincing evidence that an additional period of rehabilitation would not correct the situation.
    •  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.
    • l.  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 and custody has been transferred from the child’s parents for placement pursuant to section 232.102.
      • (2)  The parent has a severe, chronic substance abuse problem, and presents a danger to self or others as evidenced by prior acts.
      •  (3)  There is clear and convincing evidence that the parent’s prognosis indicates that the child will not be able to be returned to the custody of the parent within a reasonable period of time considering the child’s age and need for a permanent home.

 Appeal of Termination of Parental Rights

Silverio appealed this decision, arguing the juvenile court violated his due process rights when it ordered a drug test at the end of the termination trial and then relied on those results, that the State had failed to establish a statutory ground for termination by clear and convincing evidence, and that termination of Silverio’s parental rights was not in the children’s best interest.  The court of appeals reversed because, although they ruled that Silverio had not preserve error on his objection to the drug test, they were “bothered” by the results and the accuracy of the test.  They also felt that termination was not in the children’s best interests.

Iowa Supreme Court Analysis of Termination of Parental Rights Proceedings

The court reviews proceedings to terminate parental rights de novo, meaning they give weight to the juvenile court’s findings of fact, but are not bound by them.

The Iowa Supreme Court disagreed with the court of appeal’s finding  that the record lacked clear and convincing evidence to warrant termination of Silverio’s parental rights.  The Court listed several points that led to their conclusion:

  • Fingernail Drug Test
    • The general rule that appellate argument must first be raised in the trial court applies to CINA and termination of parental rights cases.  In re Interest of K.C., 660 N.W.2d 29, 38 (Iowa 2003).
    •  Silverio was not ordered to take the fingernail drug test, he stated that he was perfectly willing to take the test and then reported voluntarily to do so.
    •  The test report has no indication of unreliability on its face.  Iowa R. Evid. 5.901(a).
    • The evidence was admitted without objection.
  • Grounds for Termination
    • The Court can base affirmation of the juvenile court’s order on any one ground they find is supported by the record.  In re Interest of D.W., 791 N.W.2d 703, 707 (Iowa 2010).
    • The Court finds that termination is proper under Iowa Code Section 232.116(1)(d).
    • The juvenile court’s finding is based on clear and convincing evidence.
      •  The juvenile court found that Silverio denied his drug use in the face of credible evidence to the contrary.  His drug problem was not resolved and therefore was not in any state to provide a safe and stable home for the children.
  • Best Interests of the Children
    • After statutory grounds for termination are established, the Court must still determine whether termination is in the children’s best interests.  Iowa Code section 232.116(2).
      •  The Court gives “primary consideration” to the child’s safety, long term nurturing and growth of the child, and physical, mental and emotional needs of the child.  Iowa Code section 232.116(2).
      • The children were excelling in foster care and they repeatedly told their care providers they were happy living there.  Truancy problems were no longer an issue, the children were doing well in school  and the foster parents had indicated a desire to adopt them.
      • Although Silverio had taken advantage of DHS services, he was still involved in drug and domestic violence related arrests.  Also, he refused to acknowledge any illegal drug use despite several positive drug tests.

Because of these reasons, the Iowa Supreme Court reversed the court of appeals and affirmed the juvenile court ruling terminating Silverio’s parental rights.

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