IN THE INTEREST OF L.M., Minor Child, K.L., Mother, Appellant.
review from the Iowa Court of Appeals.
from the Iowa District Court for Page County, Amy Zacharias,
District Associate Judge.
guardian ad litem for a child whose parents' had their
parental rights terminated seeks further review of the court
of appeals decision reversing the mother's termination.
DECISION OF THE COURT OF APPEALS VACATED; DISTRICT
COURT ORDER AFFIRMED.
R. Wyatt of Woods & Wyatt, P.L.L.C., Glenwood, for
J. Miller, Attorney General, Ana Dixit and Tabitha J.
Gardner, Assistant Attorneys General, and Carl M. Sonksen,
County Attorney, for appellee.
M. Hart of Reisinger Booth & Associates, P.C. L.L.O.,
Omaha, Nebraska, guardian ad litem for minor child.
mother appealed an order terminating her parental rights. The
court of appeals reversed the order, concluding on de novo
review that the Iowa Department of Human Services (DHS)
failed to prove it made reasonable efforts to reunite the
incarcerated mother with her child. On further review, we
vacate the decision of the court of appeals and affirm the
decision of the juvenile court terminating the mother's
Factual Background and Proceedings.
was born on December 28, 2015. At the time of her birth, she
tested positive for methamphetamine, amphetamine, and
benzodiazepines. She was promptly removed from the custody of
her mother, Katherine, who had a significant history of drug
abuse that had previously led to the removal of
two older children from her custody. L.M. was placed in
participated in supervised visitation with L.M. on January 5,
2016, but failed to attend another scheduled visit three days
later. Visitation ceased entirely after Katherine was
arrested on January 10 and jailed in Page County on a charge
of conspiracy to deliver methamphetamine. She pled guilty to
the charge and was sentenced to an indeterminate sentence of
ten years in prison on January 29.
February 4, at a hearing on the State's petition to
adjudicate L.M. as a child in need of assistance (CINA),
Katherine's counsel raised the subject of visitation,
stating, "If there is any possible way we can have any
visitation between mom and child, given the setting, I would
like to ask for that." A DHS caseworker present at the
hearing expressed doubt that face-to-face visits were
feasible at the Page County jail. After hearing
Katherine's request for visitation and the
caseworker's response, the court observed that it did
"not find that . . . visitation in that [jail] setting
is appropriate." In its order issued on February 5, the
court nonetheless ordered such visitation "as arranged
and approved by DHS."
subject of visitation was again addressed at a dispositional
hearing on February 18. A report filed by DHS prior to the
hearing recommended that "visitation [remain] at the
discretion and direction of the [DHS] and Guardian ad
Litem." When the court asked Katherine's counsel if
he was in agreement with the recommendation made by DHS,
Katherine's counsel answered in the affirmative. No
visitation opportunities were arranged for Katherine at the
county jail before she was transferred to the Iowa
Correctional Institution for Women (ICIW) in Mitchellville on
review hearing was held on June 2. The court inquired whether
Katherine or the guardian ad litem for L.M. requested any
additional services. Although no visitation with L.M. had
been provided for Katherine at the ICIW, Katherine's
counsel made no request that DHS be ordered to arrange
permanency hearing was held on September 15. The report filed
by DHS summarizing the status of the case recommended the
court change the goal of the juvenile proceeding from
reunification to termination. Katherine's counsel
objected to the change proposed by DHS, noting that Katherine
had submitted a letter to the court acknowledging her past
mistakes, expressing her desire for reunification with L.M.,
and requesting more time to make that possible. In addressing
the likely longevity of her incarceration, Katherine's
letter expressed optimism that she would be released from the
ICIW and transferred to a community corrections facility in
Council Bluffs in October or November of 2016. The following
colloquy occurred during the hearing on the subject of
THE COURT: Are there any other services you're asking for
at this time given the fact that [Katherine's]
[COUNSEL FOR KATHERINE]: No, your honor.
court approved the recommendation of DHS and ordered that the
goal of the proceeding should change to termination of
petition for termination of Katherine's parental rights
was filed on October 20. The State alleged termination should be
ordered under Iowa Code section 232.166(1)(b),
(e), (h), and (j).
hearing on the petition for termination was held on January
19, 2017. In her testimony, Katherine described
progress toward the goal of rehabilitation. Katherine's
exemplary conduct at the ICIW earned the trust of
correctional authorities, who permitted her to leave the
correctional facility and work regularly at the department of
corrections office in Des Moines. Through this employment,
she developed computer and clerical skills, enhancing her
future employment opportunities. While serving her sentence
at the ICIW, Katherine completed a drug-treatment program
addressing her longstanding addiction history.
record reveals that Katherine's progress on the path
toward rehabilitation was recognized by the parole board in
its notice of parole issued a few days prior to the
termination hearing. Katherine testified she expected to be
transferred to a community correction facility in Council
Bluffs as soon as it had space for her-likely within thirty
days after the termination hearing. Katherine expected the
duration of her placement at the community correction
facility to be approximately three months.
juvenile court adopted the recommendation of DHS and ordered
the termination of Katherine's parental rights. The court
concluded the State had proved its case for termination under
section 232.116(1)(b), (e), and
(h). Katherine appealed, contending the juvenile
court erred in ordering termination of her parental rights
(1) under section 232.116(1)(b) because she was not
given the opportunity to resume care of L.M., (2) under
section 232.116(1)(h) because clear and convincing
evidence did not establish L.M. could not be returned to
Katherine's custody in the near future, (3) because DHS
failed to make reasonable efforts in furtherance of
reunification, and (4) because termination is not in
L.M.'s best interest.
court of appeals reversed the termination order, concluding
DHS failed "to offer reunification services,
specifically visitation with L.M., without establishing that
visits with [Katherine] would have been inappropriate or
infeasible." Noting Katherine's significant progress
toward rehabilitation and the lack of evidence that DHS
offered any opportunity for visitation during the
incarceration, the court reasoned Katherine should be allowed
a six-month extension to work toward reunification. We
granted the guardian ad litem's application for further