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In the Interest of K.S.

February 13, 2013

IN THE INTEREST OF K.S., MINOR CHILD, K.S., MINOR CHILD, APPELLANT.


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

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

The attorney/guardian ad litem for a child appeals the juvenile court's permanency orders approving a reunification plan for the mother and child. AFFIRMED.

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

The attorney/guardian ad litem (GAL) for a child appeals the juvenile court's permanency orders approving a reunification plan for the mother and child. We affirm.

I. Background Facts and Proceedings.

B.S. is the mother and T.M. is the biological father of K.S., born in May 2011. In a prior appeal, discussed below, we set forth the background facts of the case as follows:

The child at issue was temporarily removed from the mother's care upon discharge from the hospital only two days after the child's birth in May 2011. At the time of birth, the child had two older half-siblings who were in the custody of the Iowa Department of Human Services (DHS) after having been removed from the mother's care. In March 2011, the mother had successfully completed a residential substance abuse treatment program and moved into an apartment. Approximately one month later, she was discharged from the aftercare program for failure to attend her scheduled sessions. DHS has been involved with the family since 2009 and had ongoing involvement primarily because of the mother's use of illegal drugs and history of relationships involving domestic abuse.

At a removal hearing on June 6, 2011, the juvenile court found the child could be returned to the mother because the mother had completed a clean drug test and had agreed to abide by a no-contact order with the child's father, against whom there was a recent finding of physical abuse of the mother's older two children.

On June 15, 2011, a service provider went to the mother's apartment to talk with the mother about posting on the father's Facebook wall in spite of the no-contact order. The worker's written statement indicates that when she arrived at the mother's apartment, the father was in the kitchen and the mother was in her bedroom with the child packing a basket. The mother's written statement says the father entered her house and would not leave, so she was packing clothes to leave with the child. The mother admitted to communicating with the father via Facebook but stated she did not realize this was a violation of the no-contact order.

At a subsequent visit to the mother's house on June 16, 2011, police found drug paraphernalia and noted the odor of marijuana in the mother's apartment. The mother claimed the paraphernalia belonged to a man she allowed to stay at her place from time to time. DHS was not aware of this man's presence in the mother's life. This individual later claimed ownership of the drug paraphernalia. The mother and child were tested for drugs, and both were clean.

Following these incidents, the child was removed from the mother's care June 17, 2011, and has not returned to her care since. In its removal order filed August 1, 2011, the court wrote, "The Court specifically notes the child was returned to the mother's care with the specific understanding there would be a no-contact order with [the child's father] and that there would be no substances in her life. Both of these conditions were violated by the mother."

The child was adjudicated to be in need of assistance on August 1, 2011. On August 10, 2011, the court terminated the mother's rights to her two older children who are not at issue in this case. The termination was based largely on the mother's history of choosing paramours who were substance abusers and physically abused both her and her children. The court found the children could not be reunited with their mother "due to the mother's inability to protect the children from her abusive paramours." On August 30, 2011, the mother told a case provider she would not resume her relationship with the father of K.S. once the no-contact order was lifted because she felt it was his fault her parental rights to the two older children had been terminated.

On October 7, 2011, the mother called the police to report a domestic assault. The police arrived and found the child's father hiding in a closet in the mother's apartment. He was arrested for domestic assault. The police report states the mother reported her live-in boyfriend, the child's father, had physically abused her. The police report noted a valid no-contact order was in effect between the mother and father. The report further details that the mother "stated she was going to her mother's place for the night due to [the father] possibly coming back to the residence since he has a key." The mother signed a police report indicating she had been physically abused by the child's father, her "live in boyfriend."

At the trial for termination of the mother's parental rights to the child at issue in this case, the mother and the father both testified they were not living together when the incident occurred on October 7, 2011. The mother testified she never told the officer the child's father lived with her and stated the officer lied. She testified she had not lived with the father since June 2011. In November 2011, the father told a service provider he had been living with the mother since she moved into her apartment (in March 2011), had a key to the place, and also had been at her place the day the drug paraphernalia was found. The father later denied this, saying the service provider had misunderstood him. The mother testified against the father in the criminal trial that resulted from the domestic incident. In that trial, the mother testified that at the time of the domestic assault incident, she was not living with the father, although he did come over at times.

In a permanency order filed December 13, 2011, the juvenile court found, "Since our last hearing [September 2011], there has been another incident of domestic violence between the mother and the father, and there has been continued violation of the no contact order. The child cannot be returned safely to either parent at this time." Based on the parents' lack of progress to rectify the circumstances that led to the adjudication of the child as a child in need of assistance, the court found a hearing should be scheduled to determine whether parental rights should be terminated. On January 9, 2012, the State filed a petition for termination of parental rights.

Throughout the pendency of these proceedings, the mother's visits with the child were supervised. The mother testified at the termination trial that she had two supervised visits per week with the child for two hours each. The mother consistently attended the visits and, with the exception of a few minor issues, was appropriate and loving with her child. The mother was consistently employed and had ...


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