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In re H.B.

Court of Appeals of Iowa

December 20, 2017

IN THE INTEREST OF H.B. and L.G., Minor Children, B.M., Mother, Appellant.

         Appeal from the Iowa District Court for Polk County, Colin J. Witt, District Associate Judge.

         A mother appeals the termination of her parental rights to two children. REVERSED.

          Emily K. DeRonde of DeRonde Law Firm, P.L.L.C., Johnston, for appellant mother.

          Thomas J. Miller, Attorney General, and Anagha Dixit, Assistant Attorney General, for appellee State. Charles E. Isaacson of Charles Isaacson Law, P.C., Des Moines, guardian ad litem for minor children.

          Considered by Vaitheswaran, P.J., and Potterfield and McDonald, JJ.

          VAITHESWARAN, Presiding Judge.

         A serially abused mother with a history of substance abuse and mental illness appeals the termination of her parental rights to two children, born in 2012 and 2014. She challenges the ground for termination cited by the juvenile court and raises several other issues. We find her challenge to the termination ground dispositive.

         I. Background Facts and Proceedings

         The children were removed from the mother's care in 2015 after she left them with relatives and failed to provide the relatives with medical releases. The State petitioned to have the children adjudicated in need of assistance under several statutory grounds. The juvenile court granted the petition but dismissed one of the statutory grounds-Iowa Code section 232.2(6)(b) (2017)-"pursuant to oral motion of the State." Section 232.2(6)(b) defines a child in need of assistance as a child "[w]hose parent, guardian, other custodian, or other member of the household in which the child resides has physically abused or neglected the child, or is imminently likely to abuse or neglect the child."

         The mother cooperated with reunification services and, in time, the juvenile court ordered the children returned to her care. The children remained with her for seven months. During that time, the mother's cooperation waned and she failed to appear at review hearings. The juvenile court ordered the children transferred to the department's custody.

         The State petitioned to terminate the mother's parental rights. Notwithstanding its prior dismissal of the section 232.2(6)(b) ground for adjudication, the State alleged "the Court has previously adjudicated the children to be [children] in Need of Assistance within the meaning of Section 232.2(6)(b)." The State sought termination of the mother's parental rights pursuant to section 232.116(1)(d) and several other statutory provisions. The other provisions required removal of the children for a specified period of time. In light of the seven-month reunification of the children with their mother, the time frame in those provisions was not satisfied.

         At the termination hearing, it became apparent that section 232.116(1)(d) was the only pled termination ground on which the State could rely. To prove "physical abuse or neglect, " the State pointed to the mother's decision to leave the children with relatives and her failure to provide medical releases. The State also cited evidence of a 2005 order terminating the mother's parental rights to an older child. This order was partially grounded on physical abuse or neglect of the child under section 232.2(6)(b) and termination under section 232.116(1)(d).

         The juvenile court terminated the mother's parental rights pursuant to section 232.116(1)(d). This appeal followed.

         II. ...


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