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In the Interest of S.M.

March 27, 2013


Appeals from the Iowa District Court for Black Hawk County, Daniel L. Block, Associate Juvenile Judge.

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

A mother and father separately appeal from the termination of their parental rights. AFFIRMED.

Considered by Vogel, P.J., and Potterfield and Doyle, JJ.

A mother and father separately appeal from the termination of their parental rights to a child, S.M. The father argues termination of his rights was not appropriate because S.M. is in the custody of S.M.'s paternal grandparents, and because the court should have deferred permanency. The mother argues termination of her rights was improper because the Iowa Department of Human Services (DHS) raised false barriers to her reunification with S.M. We affirm, finding termination as to both parents is in the best interests of S.M.

I. Facts and Proceedings.

S.M., born in 2011, came to the attention of the DHS after she sustained a spiral fracture to her right leg. During the medical examination of the child as a result of this injury, healing rib fractures were also found. Physicians identified the injuries as non-accidental. Police arrested and charged S.M.'s father with child endangerment for inflicting these injuries. The court ordered no contact between S.M. and S.M.'s father after he was released from jail. DHS found S.M.'s mother had denied S.M. critical care by failing to provide proper supervision and noted several instances where S.M.'s mother struck S.M.'s father in the presence of S.M. and S.M.'s sibling.*fn1 The parents agreed to begin mental health treatment and other DHS-provided services. Both parents were enrolled in anger management classes.

On February 14, 2012, S.M. and S.M.'s sibling were removed from their home and placed with S.M.'s paternal grandparents. A removal hearing held on February 22, 2012, confirmed the placement. S.M. was not returned to her parents' care throughout the juvenile court proceedings.

On March 23, 2012, the juvenile court adjudicated S.M. a child in need of assistance (CINA). At the hearing on CINA adjudication, S.M.'s mother objected to visitation at S.M.'s paternal grandparents' home. She did not, however, object to the custodial order, which placed S.M. in the paternal grandparents' home.

After the CINA adjudication, S.M.'s mother regularly participated in services but exhibited problems with emotional functioning including shutting down and intense outbursts. DHS workers noted her parenting skills were not improving, and she continued to use physical discipline with the children even after signing a safety plan in which she agreed not to use physical discipline. Workers also noted her continual focus on perceived conflicts with S.M.'s paternal grandparents regarding S.M. DHS worked with S.M.'s mother during services to resolve the conflict between S.M.'s mother and the grandparents. No visits took place between S.M.'s father and S.M during this time due to the no-contact order. Because of the pending criminal charges, participation by S.M.'s father in services was limited on advice of his attorney. Both parents minimized S.M.'s injuries by stating they did not know about the broken ribs and that the broken leg accidentally occurred during a diaper change. On July 23, 2012, the district court modified the no-contact order to allow supervised visitation between S.M. and S.M.'s father. During this time period, S.M.'s mother became angry outside a party with S.M.'s father, pushing him and a child into a car and throwing objects at him. She later stated she "blacked out" because she was so angry.

At the permanency hearing on August 17, 2012, S.M.'s mother and father did not contest the services they were given but requested the court defer permanency for six more months. The court did not defer permanency and continued the child's placement with the paternal grandparents.

A termination hearing was held in January of 2013. At the hearing, the court heard testimony from the child's aunt and two DHS workers involved in S.M.'s case. S.M.'s father lived with friends at the time of the hearing. DHS representative Anne Varney testified the relationship between S.M.'s parents was still unstable-the relationship was on again and off again. She explained that S.M.'s mother at times would decide to file for legal separation and at other times the couple would reconcile, again working on their relationship. Another DHS worker, Wendy Markey, reported the couple had changed their minds on their relationship status at least four times in the last month. Markey testified:

They attend all visitations. We have counted. They have attended over 120 visits. They have followed through with both of them, completed an anger management program. They have completed parenting classes. I think that every service possible has been offered to them. It's just at this point they haven't been able to demonstrate they could utilize the services that we have provided to them to provide a safe home for their children. . . .

[M]ental health and anger management I think are the huge factors in the relationship.

Varney reported concerns with the mother's anger management skills, having observed problems herself, and hearing reports from both parents that mother would hit the father. These incidents of violence, Varney reported, would occur after extensive yelling and screaming. Three months before the hearing, S.M.'s mother acknowledged she had blacked out and hit the father in a bowling alley- after she had completed a sixteen-week anger management course. Varney reported that while S.M.'s mother was taking medication to help with her mental health issues she refused to see a therapist. Varney described "a ton" of bickering and tension between the two parents during visitation with S.M. The juvenile court noted the danger of the persisting relationship between S.M.'s mother and father, ...

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