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In re L.M.

Supreme Court of Iowa

December 8, 2017

IN THE INTEREST OF L.M., Minor Child, K.L., Mother, Appellant.

         On review from the Iowa Court of Appeals.

         Appeal from the Iowa District Court for Page County, Amy Zacharias, District Associate Judge.

         The 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.

          Justin R. Wyatt of Woods & Wyatt, P.L.L.C., Glenwood, for appellant.

          Thomas J. Miller, Attorney General, Ana Dixit and Tabitha J. Gardner, Assistant Attorneys General, and Carl M. Sonksen, County Attorney, for appellee.

          Sarah M. Hart of Reisinger Booth & Associates, P.C. L.L.O., Omaha, Nebraska, guardian ad litem for minor child.

          HECHT, Justice.

         A 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 parental rights.

         I. Factual Background and Proceedings.

         L.M. 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[1] that had previously led to the removal of two older children from her custody. L.M. was placed in foster care.

         Katherine 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.

         On 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."

         The subject of visitation was again addressed at a dispositional hearing on February 18.[2] 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 February 26.

         A CINA 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 visits.[3]

         A 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 services:

THE COURT: Are there any other services you're asking for at this time given the fact that [Katherine's] incarcerated?
[COUNSEL FOR KATHERINE]: No, your honor.

         The court approved the recommendation of DHS and ordered that the goal of the proceeding should change to termination of parental rights.

         A petition for termination of Katherine's parental rights was filed on October 20.[4] The State alleged termination should be ordered under Iowa Code section 232.166(1)(b), (e), (h), and (j).[5]

         A hearing on the petition for termination was held on January 19, 2017.[6] 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.

         The 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.

         The 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.

         The 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 review.

         II. ...

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