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In re J.A.

Court of Appeal of Iowa

October 23, 2013

IN THE INTEREST OF J.A. and A.A., Minor Children. T.A., Father, Appellant.

Appeal from the Iowa District Court for Polk County, Colin J. Witt, District Associate Judge.

A father appeals the termination of his parental rights to two children.

Michael J. Bandstra, Des Moines, for appellant father.

Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant Attorney General, John Sarcone, County Attorney, and Susan Cox, Assistant County Attorney, for appellee.

Samantha Gronewald of Sullivan & Ward, P.C., West Des Moines, for mother.

John P. Jellineck of Public Defender Office, Des Moines, attorney and guardian ad litem for minor children.

Considered by Potterfield, P.J., and Mullins and Bower, JJ.

MULLINS, J.

A father appeals from a juvenile court order terminating his parental rights to two of his children, A.A. (born December 2008) and J.A. (born 2011), under Iowa Code section 232.116(1)(h) (2013). He argues the State failed to prove the grounds to terminate his parental rights pursuant to Iowa Code section 232.116(1)(h) and to make reasonable efforts toward reunification. On September 5, 2013, we filed a decision in which we affirmed as to J.A. and vacated and remanded as to A.A. We subsequently granted the State's petition for rehearing and pursuant to rule 6.1204 vacated our prior decision. After rehearing, we affirm as to J.A. and vacate and remand as to A.A..

I. Background Facts & Proceedings

On October 10, 2012, the State petitioned to terminate both the mother's and father's parental rights pursuant to Iowa Code section 232.116(1)(h). The juvenile court held hearings on December 13, 17, and 18, 2012. The hearing then was delayed, due to scheduling and docketing issues, and the court did not complete hearing all testimony until March 22, 2013. The juvenile court heard testimony from the mother, the father, the court-appointed special advocate (CASA), the father's therapist, A.A.'s therapist, the maternal aunt, and the Family Safety, Risk and Permanency (FSRP) family consultant. The mother consented to termination of her parental rights.[1]

The family first came to the attention of the Iowa Department of Human Services (DHS) in July 2010, before the birth of J.A. The juvenile court entered a temporary removal order for A.A., following allegations of drug use and physical abuse. The juvenile court placed A.A. in the care of the maternal great grandmother. The parents consented to the temporary removal. The juvenile court adjudicated A.A. a child in need of assistance on August 17, 2010, based on the mother's and father's substance abuse. The court ordered the parents to participate in FSRP services, substance abuse evaluation and treatment, parenting classes, and drug testing. During review hearings between that date and June 2011, the mother and father struggled with drug and alcohol use. The mother and father have a long history of substance abuse and domestic violence. During this time the father was largely unresponsive to services and regularly used drugs and alcohol.

In March 2011, the mother entered House of Mercy, and the juvenile court permitted A.A. to join her there. A.A.'s sibling, J.A., was born in 2011, while the mother resided at House of Mercy. After the mother was discharged from House of Mercy, she continued receiving outpatient treatment, and both children remained with her until February 23, 2012. The parties were scheduled for a review hearing on that date. However, in the early morning, the father appeared at the family home intoxicated and assaulted the mother in front of the children. The father choked the mother and punched her in the face. A.A., who was three years old at the time, tried to prevent the assault, screaming at the father to stop. The mother appeared at the hearing later that morning with a bruised neck and blackened eyes. Following this event, the juvenile court removed A.A. and J.A. and placed them back in the maternal great grandmother's home, but allowed the mother to reside there with them. At a review hearing on March 9, 2012 the juvenile court returned the children to the mother.[2] On April 10, 2012, the juvenile court adjudicated J.A. a child in need of assistance and confirmed placement of both children in the mother's care, so long as she returned to and remained at House of Mercy. However, on April 30, 2012, the mother chose to leave House of Mercy before completion of her treatment. On May 14, 2012, the court placed the children in the care of the maternal aunt and uncle, where they remained through the last day of the termination hearing.[3]

The father finally sought therapy for substance abuse and anger management, attending his first session with a substance abuse counselor on May 8, 2012. Although the father testified at the termination hearing that he stopped drinking and using drugs after the February 23, 2012 incident, his psychosocial assessment social history form from the May 8, 2012 appointment indicated his last use of alcohol was "last Friday." The father began having therapy appointments once a week. This lasted from May to July 2012. In July he cut back to once every two weeks because his work schedule made attending difficult. In October he resumed once-a-week therapy, following an incident at a family team meeting where he became angry and displayed aggression ...


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