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In the Interest of D.K. Jr.

April 24, 2013

IN THE INTEREST OF D.K. JR. AND R.K., MINOR CHILDREN, B.K. MOTHER, APPELLANT.


Appeal from the Iowa District Court for Carroll County, James A. McGlynn, Associate Juvenile Judge.

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

A mother appeals the termination of her parental rights. AFFIRMED.

Considered by Doyle, P.J., and Danilson and Mullins, JJ.

A mother appeals from a juvenile court order terminating her parental rights. The mother contends the State failed to present clear and convincing evidence of statutory grounds for termination, and terminating her parental rights is not in the children's best interest. We affirm the juvenile court's order.

I. Background Facts & Prior Proceedings

This appeal concerns the mother's parental rights to R.K. (born September 2007) and D.K. (born July 2004). The mother and the father are separated. Throughout these proceedings, the mother maintained an unstable and physically abusive relationship with her boyfriend, Shane.

In June 2009, this case came to the attention of the Department of Human Services (DHS) following reports that Shane physically abused D.K. causing bruising on the child's nose and forehead. According to the reports, Shane was upset with D.K. because the child was sitting in a chair on his knees. Shane pulled the chair out from under D.K. causing the child to hit his face on a table and fall to the floor. D.K. was just four years old at the time. R.K. has a unique medical condition known as Craniosyntosis, a congenital abnormality causing the child's growth plates to fuse together. As a result of R.K.'s medical condition, doctors removed a portion of her skull to allow her brain to grow and develop. DHS expressed concerns that if R.K. suffered injuries similar to D.K.'s injuries the consequences could prove fatal.

After the incident of physical abuse, the mother agreed to place the children in foster family care pursuant to a voluntary placement agreement. The agreement restricted Shane from having any contact with children, but did not restrict the mother's access to the children. Although the social worker providing services to the family strongly encouraged the mother to take advantage of visitation opportunities, the mother called the children only two times in the month following voluntary removal. During this time, the mother maintained her relationship with Shane and, on at least one occasion, allowed him to contact the children.

The social worker reported that the children were at "very high risk of further abuse" from Shane under the voluntary placement agreement. The State petitioned the juvenile court for a temporary removal order to replace the voluntary placement agreement. The juvenile court ordered temporary removal and, in a subsequent hearing, confirmed removal.

In July 2009, the juvenile court held an uncontested adjudication hearing. The parents stipulated that the children were children in need of assistance pursuant to Iowa Code section 232.2(6)(b) and (c)(2) (2009).

In November 2009, the juvenile court held an uncontested dispositional hearing. The parents agreed that the children continued to be children in need of assistance and should remain in family foster care. The mother acknowledged that she was unable to assume custody of the children and continued her relationship with Shane. DHS's primary goal had been reunification with the father. Unfortunately, prior to the dispositional hearing, the father was arrested for a third offense operating while intoxicated (OWI)-his fifth lifetime OWI charge-and was subsequently sentenced to prison.

In February 2010, the parties waived the scheduled dispositional review hearing and stipulated to a dispositional order. The parents agreed the children continued to be children in need of assistance. As the father was in prison and in no position to care for the children at that time, DHS changed the permanency goal to reunification with the mother. As the order explained, "The permanency goal is reunification with the mother, but it is clear that the mother must make substantial progress toward reunification and [be in] consistent contact with the children in order for that to happen."

The juvenile court continued the permanency hearing scheduled for June 2010 to allow the State to file a petition to terminate parental rights. In September 2010, the juvenile court held a combined permanency hearing and termination of parental rights proceedings. After all parties rested, the court found "that it would be in the best interest of the children to adjourn the hearing, to keep the record open, and to reschedule a final date for the hearing in about six months." Toward that end, the juvenile court entered a permanency order allowing the parents an additional six months to work toward reunification.

In May 2011, the juvenile court reconvened on the combined permanency hearing and termination of parental rights proceedings. The court found, "[I]t is clear that the children cannot be returned to the custody of the mother. The mother squandered the opportunity to work toward reunification while the hearing was adjourned. She has not visited with the children now for several months." Notwithstanding the mother's failure to visit the children, the court found terminating her parental rights would not be in ...


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