Termination of Parental Rights

Termination of Parental Rights Ruling

The Iowa Court of Appeals entered a judgment affirming a ruling by Judge Constance Cohen, of the District Court of Polk County, in In the Interest of L.C.H.  The juvenile court terminated the parental rights of the parents of a young infant.  The father did not appeal the decision.  The mother was incarcerated and the child tested positive for marijuana at the child’s birth.  The child was removed from the mother’s custody and the maternal grandmother provided care for the child.

The baby was adjudicated to be a Child in Need of Assistance, or CINA.  The mother continued to be incarcerated, however, did complete parenting and victim impact classes.  While at a halfway house, the mother took advantage of visits with her child.  Despite some progress, the court found the mother’s insight into her drug, alcohol and violence was lacking.

Grounds for Termination of Parental Rights

Eventually, the State petitioned to terminate the parental rights of both parents when it became clear that the infant would not be able to be returned to their care in the foreseeable future.  The court terminate the parental rights of the mother under Iowa Code Sections 232.116(1)(d), (h), (l) (2011):

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.

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.

Unfortunately, the mother had last seen her child 4 months previously, causing the court to find the child “has no significant attachment (to the mother) because of incarceration.”  The court also noted the mother has a “severe and chronic substance abuse problem” and that the mother is not willing to admit she has a problem.  Without “an admission that there is a problem, change is unlikely.”

Guardianship by Grandmother?

In her appeal, the mother argues that a guardianship by the maternal grandmother is the appropriate course of action rather than a termination of her parental rights.  However, the court notes that a guardianship is not a “preferred outcome” for a young infant.  The court describes that chaotic conditions in the parent’s lives and comes to the conclusion that the baby would not be able to return to the parents any time in the foreseeable future.

In Iowa, district probate courts have jurisdiction over guardianships.  Guardians are responsible for the physical custody of the ward.  Unlike conservators, they are not responsible for the ward’s financial decisions.

The baby was thriving under the maternal grandmother’s care, and the grandmother was willing to adopt. So, although the court was not required to terminate parental rights when there is a relative who has legal custody of the child (Iowa Code section 232.116(3)(a)), here the court felt it was necessary.  They did not find clear and convincing evidence that termination would be detrimental to the child (Iowa Code 232.116(3)(c)).

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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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In the Interest of V.A.H.

On June 13th, 2012, the Iowa Court of Appeals  entered a ruling in the case In The Interest of V.A.H., a termination of parental rights appeal from the Iowa District Court for Lee (North) County.  Thomas, the father/appellant, had his parental rights terminated after discontinuing his relationship with his child, V.A.H., born in March of 2008.  Thomas and the mother of the child, Jennifer were never married but lived together when the child was born until April 2009.  After ending their cohabitation, Thomas rarely visited the child and when he did, it was as a result of Jennifer’s planning.  Thomas did not pay child support, however did give the child a present of five dollars on his/her second birthday.

Approximately one year ago in June of 2011, Jennifer filed a petition  to terminate Thomas’s parental rights under Iowa Code chapter 600A (2011).  She claimed Thomas had abandoned the child.  This grounds for termination is codified in Iowa Code 600A.8(3)(b):

 

b.  If the child is six months of age or older when the

termination hearing is held, a parent is deemed to have abandoned the

child unless the parent maintains substantial and continuous or

repeated contact with the child as demonstrated by contribution

toward support of the child of a reasonable amount, according to the

parent’s means, and as demonstrated by any of the following:

(1)  Visiting the child at least monthly when physically and

financially able to do so and when not prevented from doing so by the

person having lawful custody of the child.

(2)  Regular communication with the child or with the person

having the care or custody of the child, when physically and

financially unable to visit the child or when prevented from visiting

the child by the person having lawful custody of the child.

(3)  Openly living with the child for a period of six months

within the one-year period immediately preceding the termination of

parental rights hearing and during that period openly holding himself

or herself out to be the parent of the child.

 

During depositions, Thomas claimed to desire a relationship with the child, but that it was impossible because he did not know where Jennifer lived and that Jennifer was not interested in allowing him visitation.  Thomas also testified however that he was aware that Jennifer worked at the same employer.

In November of 2011, the juvenile court terminating Thomas’s parental rights on the grounds of abandonment.

Termination of Parental Right’s Review by Iowa Court of Appeals

The Appeals Court of Iowa reviews termination proceedings under Iowa Code section 600A de novo.  A termination must be established by clear and convincing proof.  Once grounds for determination have been established, the court must also find that it is in the best interest of the child to proceed with the termination.

In this case, first abandonment must be shown.  The two elements  necessary to show abandonment are:

  • The giving up of parental rights and responsibilities
    • Requires affirmative parenting to the extent it is practical and feasible in the circumstances.  In re Goettsche, 311 N.W.2d 104, 106 (Iowa 1981)
    • A petitioner is not required to show total desertion in order to prove abandonment.  In re M.M.S., 502 N.W.2d 4, 8 (Iowa 1993)
  • An intent to forego these rights

Here, the juvenile court found that Jennifer was not an impediment to Thomas seeing the child.  In fact when he had seen the child, it had been because of her arranging the visit.  The court found that she had never denied him access to the child.

Best Interests of the Child

“Once the court has found a statutory ground for termination under a chapter 600A termination, the court must further determine whether the termination is in the best interest of the child.” In re A.H.B., 791 N.W.2d 687, 690 (Iowa 2010)

The court will consider, as detailed in Iowa Code section 232.116(2):

  • The child’s emotional and physical health
  • The physical, mental, and emotion condition and needs of the child
  • The closeness of the parent-child bond

The court explains that Thomas has not maintained contact with the child, has not supported the child financially, and has not affirmatively maintained a place of importance in the child’s life.  Therefore, the court affirms the juvenile court’s termination of Thomas’ parental rights.

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