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In the Interest of J.L.

February 13, 2013

IN THE INTEREST OF J.L., MINOR CHILD, THOMAS D. LONERGAN, GUARDIAN AD LITEM, APPELLANT.


Appeal from the Iowa District Court for Clinton County, Philip Tabor, District Associate Judge.

The opinion of the court was delivered by: Bower, J.

The guardian ad litem appeals from the juvenile court order dismissing the petition to terminate parental rights. REVERSED.

Considered by Doyle, P.J., and Mullins and Bower, JJ. Tabor, J., takes no part.

The guardian ad litem appeals from the juvenile court order dismissing the petition to terminate the parental rights of J.L.'s mother and father. He contends the court erred in making its determination solely based on evidence of the parents' conduct only through June 2012 when the termination hearing was held in September and October 2012. He argues clear and convincing evidence supports termination.

Because the State has proved the grounds for terminating the parents' rights by clear and convincing evidence and termination is in the child's best interest, we reverse the order denying the termination petition.

I. Background Facts and Proceedings.

J.L. was born in August 2011 and removed the following day because the

mother had prior involvement with the Department of Human Services (DHS) involving another child. Her parental rights to that child were terminated in September 2011. J.L. was placed in foster care and was adjudicated a child in need of assistance (CINA) on September 28, 2011.

Both the mother and the father have been diagnosed with ADHD, bipolar disorder, and depression. The father also has a history of substance abuse and anger management problems. The parents were offered mental health services and services to help improve their parenting skills.

By June 2012, the parents were living in a two-bedroom apartment. They had progressed to three five-hour, partially-supervised visits with the child per week. The plan was to extend the visits to eight hours. In the May 11, 2012 case progress report, the DHS worker noted the parents "are ready for reunification."

On June 11, 2012, the child stopped breathing while in the parents' care and was taken to the hospital. The child had lost consciousness a month earlier and was also taken to the hospital. Following the June 11, 2012 episode, the parents did not have visitation with the child for three weeks. Afterward, the parents were only allowed to visit the child separately.

The State filed a petition to terminate both parents' rights to the child on September 20, 2012. The termination hearing was held on September 25, 2012, and October 8, 2012. In its October 17, 2012 order, the juvenile court denied the petition. It found that reunification was imminent prior to the June 11, 2012 incident, and that the incident "changed the entire case." The court determined that incidents of bruising and injury to the child occurred in the parents' care, in foster care, and in day care, but noted that there was no assessment or investigation of the similar incidents in foster care or day care. The court then stated:

In reviewing the testimony and evidence presented, the Court cannot find a change of circumstances from these parents in June of 2012 when the report was that reunification was imminent and the situation today other than the fact that the parents have not been allowed to have joint visitation and it would appear to the Court that many of the services that were effectively being provided prior to the June incident were not being provided after the June incident. The Court believes that the permanency plan in this case has been family reunification and should continue to be family reunification. The Court is also fully aware that this cannot occur overnight and that a family reunification plan needs to be established and followed in this matter.

The guardian ad litem appeals, arguing the juvenile court erred in failing to consider evidence of the parents' performance following the June 11, 2012 incident. The guardian ad litem contends the risk of adjudicatory harm still exists, and that the ...


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