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In re A.S.

Supreme Court of Iowa

January 19, 2018

IN THE INTEREST OF A.S., Minor Child. A.S., Mother, Appellant.

         On review from the Iowa Court of Appeals. Appeal from the Iowa District Court for Monroe County, William S. Owens, District Associate Judge.

         Guardian ad litem of minor child seeks further review of court of appeals decision that reversed order terminating mother's parental rights.

          Robert F. Bozwell Jr. of Bozwell Law Office, Centerville, for appellant.

          Julie R. De Vries of De Vries Law Office, PLC, Centerville, for guardian ad litem. Thomas J. Miller, Attorney General, and Ana Dixit, Assitant Attorney General, for appellee.

          WATERMAN, Justice.

         In this appeal, we must decide whether the juvenile court erred in terminating a mother's parental rights. The mother left her three-month-old daughter with the father she knew was intoxicated. She returned to find the baby crying with blood in her diaper and took her to the hospital. Physicians determined the infant had been sexually abused. The father was ultimately convicted of that offense and sentenced to life in prison. Meanwhile, the child was placed in temporary custody with the maternal grandparents while social workers with the Iowa Department of Human Services (DHS) provided services to the mother who remained incapable of caring for her child alone. Ultimately, the juvenile court found that the State had proven the grounds for termination of her parental rights and that termination was in the child's best interests. The mother appealed. The court of appeals reversed and remanded the case for the child to remain in the custody of the grandparents as guardians. One judge dissented, concluding that court of appeals precedent disfavored guardianships under these circumstances and that the juvenile court's termination of the mother's parental rights should be affirmed. We granted the application for further review filed by the child's guardian ad litem and joined by the State.

         On our de novo review and for the reasons explained below, we affirm the juvenile court judgment and vacate the decision of the court of appeals. The controlling legislation promotes prompt permanent placement for young children, and the mother remains incapable of raising the child safely with no indication her parenting abilities will sufficiently improve in the foreseeable future despite the extensive services DHS social workers have been providing. The juvenile court correctly rejected the option of a continuing temporary guardianship with the child's grandparents.

         I. Background Facts and Proceedings.

         On the morning of February 4, 2016, A.S. left her child, who was less than three months old, in the care of the child's father, J.S., for approximately two hours. A.S. knew J.S. was intoxicated. When A.S. returned, she found the father "passed out" and their baby in a swing shaking and crying. A.S. noticed blood in their baby's diaper and with her aunt's help, took the infant to the Monroe County Hospital emergency room. The baby was promptly transferred by ambulance to Blank Children's Hospital in Des Moines, accompanied by A.S.

         The DHS received a report that the child had been seriously injured from suspected sexual abuse. Amber Bricker, a child protection worker from Polk County, spoke with hospital staff that afternoon. She interviewed A.S., who revealed J.S. had a history of methamphetamine and alcohol abuse and most recently his problems involved alcohol. A.S. admitted to Bricker that she could tell when J.S. had been drinking based on the way he looked and acted. A.S. acknowledged that when she left the baby with him, J.S. seemed drunk because his "eyes were red and his speech was off."

         The same day, the juvenile court issued an oral ruling removing the child from the care of A.S and J.S. When Bricker told A.S. about the order, A.S. agreed to comply. The next day, A.S. requested that the child be discharged to the care of A.S.'s parents. The court entered a written ex parte order temporarily removing the child from the care of both parents. The court appointed Julie De Vries as attorney and guardian ad litem for the child.

         In mid-February, J.S. was arrested on charges of child endangerment and sexual abuse in the first degree. He has remained incarcerated since his arrest.

         On March 14, the juvenile court found the child to be a child in need of assistance (CINA) pursuant to Iowa Code sections 232.2(6)(c)(2) and (d) (2016). The child was placed in the legal custody of her maternal grandparents. A.S. moved into her parents' home and has lived there with her daughter throughout the case.

         A.S. completed a psychological assessment on May 11, and the DHS received a copy of the report on June 7. A.S. was found to be "mildly intellectually disabled." The assessment "placed her reading and oral comprehension ability at the fourth grade level, with her memory ability in the low average range." The psychologist, Dr. Seth A. Brown, expressed concern because

[A.S.] did articulate that it was acceptable to leave her child in the care of an intoxicated individual, as she believed that individual could decide how to take care of a child. Background records indicate that she does not appear to acknowledge the seriousness of the sexual assault and believes that her husband did not carry out such behavior as he informed her of this.

         Dr. Brown concluded, based on extensive background information and his conversations with A.S., that A.S. "may appear well-intentioned in regard to the welfare of her daughter, but at times she does not fully appreciate the complexity of the issues and potential threats to the welfare of her daughter."

         The DHS provided various services to A.S., including family safety, risk, and permanency (FSRP) services, family team meetings, court-ordered supervision for the family, relative care for the child, and the psychological assessment for A.S. The caseworker and service providers tailored those services to accommodate A.S. For example, the FSRP provider used workbooks with pictures rather than merely handing A.S. the agency's parenting instruction material to read.

         Review hearings were held on August 8 and November 7. At the August hearing, the court asked A.S. if she wanted to request additional services. A.S. did not request a change in services. At the November review hearing, the juvenile court noted that A.S.'s visits with the child had progressed to semisupervised. The court again asked A.S. if she wanted to request different services, and A.S. again declined.

         On February 9, 2017, a jury convicted J.S. of child endangerment and sexual abuse in the first degree. J.S. was sentenced to serve life in prison without the possibility of parole. His direct appeal is pending. On February 13, the State filed a petition to terminate the parental rights of A.S. and J.S. The DHS, the child's guardian ad litem, and the court-appointed special advocate (CASA) all recommended termination of A.S.'s parental rights.

         The DHS case manager had given the grandparents information on foster parent training classes in the fall of 2016. The maternal grandmother initially told the CASA she did not need parenting classes because she had raised four children, but would take the classes if the judge ordered her. The grandparents did not realize that the DHS does concurrent planning for the child's placement even while focusing on family reunification. The March 21 CASA report noted that the maternal grandmother stated that the grandparents wanted to adopt the child if A.S.'s parental rights were terminated. By that time, the grandparents had signed up for the foster parent training classes and were waiting for the classes to begin.

         On May 15, the juvenile court held a hearing on the termination petition in conjunction with a further permanency hearing. Three witnesses testified: the DHS case manager, the FSRP care coordinator, and the CASA. All three witnesses had worked with the family and observed the family members' interactions. Dr. Brown did not testify, but his psychological assessment of A.S. was submitted into evidence. No member of the child's family testified, and A.S. did not argue for the exception to termination based on a relative of the child having legal custody. See Iowa Code § 232.116(3).

         The DHS case manager testified regarding her concern that A.S. thought it was alright to leave the child with J.S. when he was intoxicated. She also testified that, in her professional opinion, A.S.'s "intellectual ability prevents her from being able to safely raise her daughter." She later reiterated that "it's the Department's opinion that [A.S.] could not safely raise her daughter."

         The FSRP care coordinator described the services provided to A.S., who received several hours of supervised visits weekly. During these visits, A.S. cared for her child while the care coordinator provided parenting instruction. A.S. also had several hours of semisupervised time with the child weekly during which the care coordinator stopped by periodically to monitor. In 2017, the care coordinator began providing additional one-on-one instruction with A.S. The goal was to allow A.S. to concentrate on learning parenting skills without the child or other family members present. The care coordinator testified that in her opinion, A.S. still could not safely parent the child on her own.

         The CASA testified she believed that A.S., "due to her intellectual abilities, is unable to raise [the child] by herself." She also testified about an incident at the courthouse a few months earlier as reported to her by a brother of A.S. Another sibling became angry about a ring on A.S.'s hand, and A.S.'s father forcefully grabbed A.S.'s arm to show them it was not a wedding ring. A.S. became upset, threatening to hit her sister-in-law and raising a fist at her.

         The CASA further testified that she knew "there was some abuse" in the maternal grandparents' home. A.S. had told the CASA that her father slapped her in the child's presence a year ago. The CASA also testified she personally observed that "the verbal abuse [in the home] had been just kind of ongoing." She expressed concern about the impact the abuse would have on the child.[1]

Q. So [A.S.] relayed to you that she had experienced verbal or physical aggression in the home? A. Yes.
Q. Do you believe that had an impact on [the child] while that was happening? A. Yes.
Q. Even as young as four months old, do you believe [the child] was impacted by that? A. Absolutely. Through all the information that we have on the development of kids, those first few months and how important they are, even though they don't have actual memory of the events, it affects who they are for a lifetime basis.

         When questioned by the child's guardian ad litem, the CASA explained that she felt the child should be removed from the maternal grandparents' home because of the "turmoil that is in the home."

         The court issued its order on May 18 terminating the parental rights of A.S. and J.S. pursuant to Iowa Code section 232.116(1)(h) (2017).[2] The court declined to apply any exceptions to termination of parental rights under section 232.116(3). The court considered and rejected guardianship with the maternal grandparents as an option, acknowledging that

[o]ne of the other permanency options available to the juvenile court is placing the children in a guardianship pursuant to Iowa Code Section 23[2].104(2)(d)(1). In this case, however, given the age of the child, the length of time she has been removed, and the availability of other viable permanency options it is clear guardianship would not be appropriate. It is time for [the child] to achieve permanency, and in these circumstances a guardianship ...

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