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In re A.M.

Supreme Court of Iowa

February 21, 2014

In the Interest of A.M., Minor Child, A.M., Father, Appellant, J.O., Mother, Appellant, State of Iowa, Appellee.

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[Copyrighted Material Omitted]

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Mark D. Fisher of Nidey Erdahl Tindal & Fisher, PLC, Cedar Rapids, for appellant father.

Wayne Eric Nelson, Assistant Public Defender, Cedar Rapids, for appellant mother.

Thomas J. Miller, Attorney General, Janet L. Hoffman, Assistant Attorney General, and Lance J. Heeren, Assistant County Attorney, for appellee State.

Jessica L. Wiebrand, Cedar Rapids, for intervenors maternal grandparents.

Cory J. Goldensoph, Cedar Rapids, for minor child.


We are called upon to review the outcome of a termination of parental rights proceeding. Acting on the State's petition, the juvenile court terminated parental rights to a one-year-old child under Iowa Code section 232.116(1)( h ) (2011). Both parents appealed. They argued the State had failed to prove the grounds for termination by clear and convincing evidence and termination was not in the child's best interests. See id. §§ 232.116(1)( h )(4), .116(2). The court of appeals reversed the juvenile court.

Upon further review, we now vacate the decision of the court of appeals and reinstate the order of the juvenile court. We find clear and convincing evidence that the child could not safely be returned to her parents' custody and also conclude that termination was in the child's best interests.

I. Facts and Procedural History.

Jessica and Allen are the parents of A.M., a one-year-old girl born in February 2012. While Jessica and A.M. were still in the hospital following A.M.'s birth, the hospital staff expressed concerns about the couple's ability to care for A.M. Specifically, the staff worried about Jessica's lack of interest in feeding the baby. They noted a number of incidents where Jessica either did not feed the baby when urged to by staff or went extended periods of time without feeding the baby. Hospital staff indicated Jessica needed " regular reminders to feed the baby" and noted Jessica repeatedly requested the nursing staff feed the baby for her so that she could eat, sleep, or take a shower.

Jessica's behavior also raised concerns about her mental stability. Staff indicated they found her crying in her room, and she was observed to be " very anxious and rocking in her chair and bouncing her

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legs" when talking with the staff about her past relationships, history of depression, and past suicidal thoughts. Her social worker later reported that Jessica was not taking her medications at the time.

Additionally, the hospital staff had concerns about Allen. Although he had been prescribed medication for his Tourette's syndrome, he was not taking it. The nurses expressed concerns about Allen's " ability to safe[l]y hold and care for the baby."

At the time of A.M.'s birth, the department of human services (DHS) was already involved with Jessica's two older children, S.O. (born 2005) and A.L. (born 2009).[1] Both children had been adjudicated children in need of assistance (CINA) in 2009 and removed from Jessica's care in 2011. S.O. had been placed in foster care, and A.L. had been placed with his father full-time.

Just two days after A.M.'s birth, the juvenile court granted the State's request for the temporary removal of A.M. from Jessica and Allen's custody. The State filed a CINA petition the same day. The petition alleged A.M. was a CINA under Iowa Code sections 232.2(6)( c )(2) (where the child " has suffered or is imminently likely to suffer harmful effects as a result of ... [t]he failure of the child's parent ... to exercise a reasonable degree of care in supervising the child" ) and 232.2(6)( n ) (where the " parent's or guardian's mental capacity or condition ... results in the child not receiving adequate care" ). See Iowa Code § 232.2(6)( c )(2), .2(6)( n ).

A removal hearing was held a few days later. At that time, Jessica stipulated to the continued separation of A.M. from her care. Allen did not appear. The court ordered DHS's custody of A.M. to continue and indicated A.M. would remain in foster family care because her parents had " not demonstrated consistent ability to care for an infant during hospitalization." The court added, " The parents' mental health and cognitive status is likely a barrier to them safely caring for the child and further evaluation needs to occur." Jessica and Allen were ordered to complete psychological and psychiatric evaluations and were granted visitation with A.M.

Thereafter, Jessica's parents, i.e., A.M.'s maternal grandparents, filed a petition to intervene. They asked to be considered as a placement option for A.M. Their request for intervention was granted.

A final pretrial conference on the CINA petition took place in early April 2012. Jessica and the guardian ad litem (GAL) stipulated to A.M.'s being adjudicated a CINA and to her placement in foster care. Allen, however, resisted the petition. The juvenile court adjudicated A.M. as a CINA vis-à-vis mother and child. The court found it was not in A.M.'s best interests to remain with Jessica because " the hospital reported issues with the parents' ability to provide basic care to an infant," Jessica's mental health was not stable, and there was " no further in-home or community based service which would alleviate the need for out-of-home placement." The court found foster family care was the " least restrictive placement in the child's best interests."

The CINA hearing with regard to Allen occurred on April 24. The court noted that, although a paternity test had been ordered on April 14, Allen had " not yet established paternity" of A.M.[2] The court further commented:

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Jessica has agreed that foster family care is necessary at this time for [A.M.]. [Allen] does not agree and believes that [Jessica] knows how to care for a child but that her maturity and behavior are really the issue. [Allen] acknowledges that he is an inexperienced parent, but he is willing to learn. Observations of the professionals involved are that [Allen] is cooperative but not always attentive to the child during his visits and that it is likely to take significant repetition and reinforcement for [Allen] to develop the skills necessary to care for an infant. [Allen] acknowledges that he has some issue with anger management and that he is not currently taking medication for Tourette's Syndrome that has been prescribed. He is willing to do so but has not yet scheduled the appointment necessary for him to obtain the medication. [Allen] and [Jessica] are currently residing with friends and plan to move into an apartment in approximately two weeks. Their income is not stable and there is concern as to whether they will be able to financially maintain independent housing. For most of the past year they have resided with different family members.

The juvenile court thus found the State had met its burden of establishing A.M. was a CINA under Iowa Code sections 232.2(6)( c )(2) and 232.2(6)( n ). Custody of A.M. was continued with DHS for foster family care placement. Jessica and Allen were allowed supervised visitation with A.M. three times per week, and DHS was given discretion to increase visitation to semisupervised " if deemed appropriate."

A case permanency plan was developed by DHS and submitted to the juvenile court on May 23. The stated goal for A.M. was to " return child to mother's home." The plan indicated there was a good prognosis for returning A.M. to her home, and she was expected to be returned within six months.

An in-court review was scheduled for July 20. DHS presented a progress report to the court and recommended A.M. continue in foster family care. Jessica and Allen had secured an apartment but continued to struggle financially as Allen had lost his job and Jessica was not making enough money to meet their needs. The couple were relying on general assistance to pay their rent. In addition, Jessica and Allen were " not providing for [A.M.]'s tangible needs during visits and ha[d] to rely on supplies from the foster parents." The couple had missed a scheduled visit with all three children when they spent a day at the beach with their friends. They did not call or notify the provider's or A.M.'s foster parents that they would not be home for the visit. Jessica and Allen's visits with all three children remained fully supervised " due to concerns from providers that they are not able to supervise all three children and meet their needs appropriately." However, DHS requested the couple begin semisupervised visitation for A.M.'s solo visits and the court agreed to the request.

Another progress report was presented to the court before the September 28 review. It indicated Jessica and Allen's financial troubles continued even though Allen had secured part-time employment. Their rent for July and August had been paid by general assistance. Despite this, the couple had not managed to save money for September's rent and were behind on that payment. While Jessica and Allen continued to maintain a safe and clean apartment, their financial problems raised concerns about how long the couple could stay there. Allen could not afford his medication. Jessica and Allen continued to rely on the foster parents to provide

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basic supplies for A.M.'s visits. [3] On one occasion, Jessica and Allen had feuded. This led Allen to ride his bicycle on the interstate highway in the direction of his parents' home, until he was stopped by police.

Additionally, Allen had been sleeping during the semisupervised visits with A.M. because of his overnight work schedule at his new job. Allen originally denied this to the service provider who confronted him on the issue, but later admitted he had been asleep. DHS stressed that Allen " needs to be awake and alert during visits with [A.M.] in order to improve his parenting and assure A.M.'s safety."

Based on testing completed by Jessica and Allen, DHS concluded " both parents are capable of meeting the basic needs of the children but may need assistance with more complex needs such as discipline and decision making." Jessica's psychological testing revealed that she had borderline adult intellectual functioning. Allen's testing indicated he was in the lower side of the normal range of adult functioning. The evaluator noted Allen was " capable of learning things, but he probably will do best with a hands-on approach and dealing with things in a very concrete sort of way." DHS concluded that Jessica and Allen had made progress, but recommended that A.M. continue to reside with her foster family.

Over the next few months, additional issues arose with Jessica's and Allen's parenting. Visits with all three children had progressed to semisupervised during the month of November, and in that same month, A.M. was placed in relative care with her maternal grandparents (S.O. had already been placed in their care). However, service providers noted Jessica was " struggling to accept feedback from providers," and she was " getting frustrated and shutting down." She had " not been as receptive to ...

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