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In re J.O.

Court of Appeals of Iowa

June 21, 2017

IN THE INTEREST OF J.O. and CO., Minor Children, M.S., Mother, Appellant.

         Appeal from the Iowa District Court for Linn County, Susan F. Flaherty, Associate Juvenile Judge.

         A mother appeals the termination of her parental rights to two sons. AFFIRMED.

          Ellen R. Ramsey-Kacena, Cedar Rapids, for appellant mother.

          Thomas J. Miller, Attorney General, and Gretchen W. Kraemer, Special Assistant Attorney General, for appellee State.

          Judith J. Hoover of Hoover Law Office, P.C., Cedar Rapids, guardian ad litem for minor children.

          Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.

          TABOR, Judge.

         A mother, Melissa, appeals the termination of her parental rights to two sons, J.O. and C.O., now ages four and two. Melissa argues her progress toward reunification was "stymied" because the juvenile court declined to give the Iowa Department of Human Services (DHS) discretion to allow anything but supervised visitation from May 2015 until October 2016. Melissa also contends: "The length of time between the termination trial in September 2015 and the ruling in March 2017 does not support a finding of clear and convincing evidence. If the evidence were truly clear and convincing, a ruling would have been forthcoming in less than eighteen months."

         We agree the inordinate delay between the original hearing on the State's termination petition and the juvenile court's ruling terminating parental rights propelled Melissa into a parental purgatory not contemplated by Iowa Code chapter 232. After a termination hearing is concluded, the juvenile court must file written findings-either dismissing the petition or ordering parental rights terminated. Iowa Code § 232.117(1)-(3) (2017). While the statute does not include a deadline for issuing a termination decision, our case law stresses the importance of a timely determination of children's permanent placement. See In re P.L., 778 N.W.2d 33, 36 (Iowa 2010).

         In its termination order, the juvenile court offered no explanation for letting the case languish. Instead, the court tried to spin the delay as a bonus for the parents, asserting it provided them "with additional time to demonstrate the ability to care for their children." We reject this assertion. Given the strong public policy against protracted litigation in dependency proceedings, we cannot endorse a de facto continuation of permanency where the juvenile court offers no rationale for postponing its decision. See Iowa Code § 232.104(2)(b) (requiring enumeration of "specific factors, conditions, or expected behavioral changes" providing a basis for determination the need for removal of children from home will no longer exist at the end of six-month period).

         All that being said, after independently reviewing the record, [1] we cannot find the court's delay requires reversal based on the issues raised in Melissa's petition on appeal. Accordingly, we affirm for the reasons that follow.

         I. Facts and Prior Proceedings

         J.O. tested positive for cocaine at his birth in 2013. Melissa, who had a long history of addiction, acknowledged using crack cocaine throughout her pregnancy. J.O.'s father, Jason, also had a history of substance abuse, and Jason engaged in domestic violence against Melissa. The DHS initiated a child-in-need-of-assistance (CINA) action, but because Melissa immediately arranged to enter a residential substance-abuse treatment program for women with children, the DHS did not seek to remove J.O. from his mother's care.

         On April 17, 2013, the juvenile court adjudicated J.O. as a CINA, and J.O. remained with Melissa. In accordance with the adjudication order, Melissa participated in substance-abuse and mental-health treatment. But Jason did not consistently engage in services. On June 4, 2013, the court ordered Jason to have only supervised contact with J.O., and Melissa was not to "supervise or facilitate contact" between Jason and J.O.

         In February 2014, J.O. received a bad burn on his abdomen. Melissa was unsure how the injury occurred. A DHS social worker completed a protective assessment and concluded the abuse report should be founded, identifying Melissa as failing to provide critical care or proper supervision, though the social worker did not believe Melissa inflicted the injury on J.O. The DHS developed a safety plan with Melissa and concluded J.O. could safely remain in her care.

         Two months later, J.O. received another burn injury, this time to two areas on his back. Melissa reported the marks to her family safety, risk, and permanency (FSRP) provider, explaining it was a "carpet burn" caused by Melissa's older son, A.S., [2] pulling J.O. by his legs in the play area at the mall. A doctor at the Child Protection Center, who examined J.O., was skeptical of Melissa's explanation given the softness of the play-area surface and the lack of injury to J.O.'s spine. The doctor also noticed a bruise on the back of J.O.'s ear consistent with pinching or pulling. The same social worker completed another child-abuse assessment based on the second incident, which again resulted in a founded report of child abuse for failure to provide adequate supervision. On April 22, 2014, at the DHS's request, the juvenile court ordered J.O. to be placed in foster care. The court also ordered J.O. to be tested for illegal substances; the results were positive for cocaine.

         In the spring and early summer of 2014, Melissa lost headway in her efforts to reunify with J.O. She relapsed on drugs and missed visits with her son. She resumed her relationship with Jason and became pregnant with C.O. During the month of J.O.'s removal, Melissa was arrested for driving while barred. And on June 21, 2014, Jason was arrested for domestic-abuse assault causing injury after Melissa, who had abrasions on her neck, reported to police the couple's argument had become physical.

         Melissa re-entered residential substance-abuse treatment on August 11, 2014. She was discharged successfully from the facility and began working with aftercare services. The DHS agreed to increase the duration of Melissa's visitation to three hours a session, while the court found Jason would need to meet with a service provider before reinstating his fully supervised visitation.

         C.O. was born in December 2014. Although Melissa admitted using cocaine during her pregnancy, C.O.'s drug screen was negative at birth. The DHS immediately requested C.O.'s removal based on Melissa's history of substance abuse and founded child-abuse reports, as well as her lack of stable housing and employment. The juvenile court adjudicated C.O. a CINA.

         One month after C.O.'s removal, on January 12, 2015, the State filed a petition to terminate Melissa and Jason's parental rights to J.O. The following week, Melissa transitioned to semi-supervised visitation with the children. But less than a month later, J.O. returned from a visit with unexplained scratches on his neck. This prompted the DHS to establish a protocol with Melissa and daycare ...

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