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In re F.C.

Court of Appeal of Iowa

October 23, 2013

IN THE INTEREST OF F.C. and G.P., Minor Children, S.C, Mother, Appellant.

Appeal from the Iowa District Court for Polk County, Louise Jacobs, District Associate Judge.

A mother appeals the juvenile court's termination of her parental rights.

Nathaniel A. Tagtow of Tagtow & Lockwood, P.L.L.C., Des Moines, for appellant.

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

Kimberly Ayotte of Youth Law Center, Des Moines, attorney and guardian ad litem for minor children.

Considered by Vogel, P.J., and Danilson and Tabor, JJ.

TABOR, J.

A mother appeals the juvenile court's order terminating her parental rights to her now four-year-old son and three-year-old daughter. She argues the State did not meet its burden to prove grounds for termination under Iowa Code section 232.116(1) and the best-interest considerations in section 232.116(2) (2011) weigh against termination. After reviewing the record de novo, we agree the State did not present clear and convincing evidence to support the statutory bases for termination. We also find termination is not in the children's best interests, as those are defined in section 232.116(2). Accordingly, we reverse and remand.

I. Background Facts and Proceedings

The mother is twenty-six years old and emigrated from Burma to the United States in 2010. She speaks primarily Hakha Chin, but has taken English language classes since arriving in Des Moines. She and her husband have two children, F.C., born in December 2008, and G.P., born in July 2010.

It was the father's domestic abuse that brought this family to the attention of the Department of Human Services (DHS). In December 2010 the police responded to an assault by the father against the mother while she was holding their child. The mother reported several other incidents of violence perpetrated by her husband.[1]

The DHS also reported two founded incidents of child abuse in the spring of 2011—one involved the mother driving the car recklessly with the children unrestrained[2] and one involved the father operating while intoxicated with the children in the car. After these incidents the DHS recommended F.C. and G.P. be removed from their parents' custody; removal occurred on June 3, 2011. On July 19, 2011, the juvenile court adjudicated them as children in need of assistance (CINA). The children have been in foster care since that time.

The mother's justified fear of the father has been a constant in this case. Early on, the mother stayed at a domestic violence shelter. The DHS workers noted the father's family had strong ties among the Burmese refuges in Iowa and the father was "very intimidating to other members of the community." This intimidation even impacted the availability of interpreters during the case, with some Chin speakers declining to interpret for the mother due to their fear of the father. Even when the father was incarcerated, the mother reported his family continued to harass her. The mother told the case worker the family was posting her photograph accompanied by negative information on an email discussion group used by Chin speakers. The DHS worker was critical of the mother for not reporting the harassment to the police, "despite this worker suggesting [she] should do so." The mother explained she felt uncomfortable calling the police because of her limited English skills and asked the worker to do so, but apparently the worker declined.

In early 2012, the mother explored plans to move to Pennsylvania where she has family. But those plans fell through when the relatives declined to be a long-term option for the children if the mother's parental rights were terminated. At various times during the case, the mother's sister and brother traveled to Iowa to support her efforts to reunite with the children.

The mother was able to stabilize her situation by the spring of 2012. According to DHS reports, the children were "always happy to see her" during visits. The mother progressed from supervised to semi-supervised to unsupervised visits, enjoying three overnights per week with the children by June 2012. DHS reports filed in July and August of 2012 described the mother as providing "proper supervision" for her young children with only "minimal concerns" about the accessibility of hazardous items in the home. The reports also recognized the mother's "very strong bond with the children" and concluded: "it is clear that they all love each other very much."

After the court terminated the father's rights in September 2012, the DHS workers believed the mother would become a more effective parent and achieve reunification with her children. At that time the case worker reported the mother was providing proper supervision of the children and the worker observed "no safety concerns" in the mother's apartment.

The situation changed in late September 2012, when G.P. returned with an unexplained burn or scrape on her shin after an unsupervised visit with her mother. The mother pointed the injury out to case worker Lindsey Vietz, but was "unable to tell workers how the burn happened or when it happened." The DHS also emphasized the mother did not seek medical attention for the injury. But at the termination hearing, Vietz acknowledged she was not sure whether G.P. was with her mother, her foster parents, or at daycare when the injury occurred. Vietz also conceded neither she nor the foster parents took G.P. to the doctor for treatment.

Also in October 2012, the DHS expressed concerned about an incident where the children got into fingernail polish, spilling it on themselves and the mother's couch and walls. Vietz testified she explained to the mother that fingernail polish can be toxic if swallowed, but the mother "laughed and didn't seem to really care."

Lata D'Mello, an advocate from Monsoon United Asian Women of Iowa, testified the case worker may have misread the mother's reactions based on language and cultural barriers. D'Mello explained in the Burmese refugee community "if you don't speak the language, it is more polite to smile instead of looking like you don't understand anything, because it is more respectful." Vietz admitted she has struggled to get a Chin interpreter for visits, and estimated that since September 2012, an interpreter has been present only two or three times a month. D'Mello also testified that it was her impression Vietz was watching [the mother] to see her fail rather than being there to teach her how to improve her parenting skills." The mother was more charitable toward Vietz: "I believe she tried to work with me, but many times I had a hard time understanding her, but I try to improve as to the best of my ability."

The DHS reinstated fully supervised visitations in October 2012 "due to [G.P.] having a large burn on her leg where no one can identify the cause." The DHS worker noted the mother, who was working the night shift, was "tired all the time" and "claimed she was not getting enough sleep." The worker also noted the mother did not "have a lot of support from her community." In a subsequent report, the DHS worker criticized the mother for "relying on her ...


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