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In re J.M.

Court of Appeals of Iowa

March 7, 2018

IN THE INTEREST OF J.M., L.M., and B.M., Minor Children, SHANNON M. LEIGHTY, guardian ad litem, Appellant.

         Appeal from the Iowa District Court for Story County, Stephen A. Owen, District Associate Judge.

         A guardian ad litem appeals the denial of termination-of-parental-rights petitions concerning three children.

          Shannon M. Leighty of the Public Defender's Office, Nevada, appellant. Patrick C. Peters of Payer, Hunziker, Rhodes & Peters, LLP, Ames, for appellee father.

          Daniela Matasovic of Matasovic Law Firm, Ames, for appellee mother.

          Thomas J. Miller, Attorney General, and Anagha Dixit, Assistant Attorney General, for appellee State.

          Considered by Vogel, P.J., and Potterfield and Mullins, JJ.

          MULLINS, Judge.

         A guardian ad litem[1] appeals the denial of termination-of-parental-rights (TPR) petitions concerning three children, L.M., B.M., and J.M., born in 2013, 2014, and 2017, respectively. She contends the juvenile court erred in not terminating the parents' parental rights as to all three children pursuant to Iowa Code section 232.116(1)(b), (e), and (l) (2017). She also argues the court erred in concluding termination of the parents' parental rights as to the youngest child, J.M., under section 232.116(1)(h) was not in the child's best interests.[2]

         I. Background Facts and Proceedings

         The parents and children came to the attention of the Iowa Department of Human Services (DHS) in February 2017 when the mother visited the hospital and tested positive for methamphetamine (meth). The State also alleged that both parents cared for the two older children while under the influence of meth. Shortly thereafter, the mother gave birth to the youngest of the three children and both she and the child tested positive for meth. The mother also tested positive for amphetamines and opiates. In March, the parents stipulated to removal and the children were adjudicated children in need of assistance (CINA).

         In April, DHS recommended both parents undergo substance-abuse and mental-health treatment. The father began inpatient substance-abuse treatment but left after a few days. He began outpatient treatment in May, but he did not attend his sessions consistently. He was discharged from the program in July for lack of attendance, having attended only one group session and no individual sessions. The mother also began inpatient substance-abuse treatment, but she left the program after about a week. The mother's subsequent attempts to complete an inpatient treatment program were unsuccessful. Neither parent obtained mental-health treatment. Neither parent heeded DHS's recommendation to attend parenting classes.

         The father was arrested in Iowa on or about July 19 and was subsequently extradited to Georgia, having had his probation on a charge of credit card fraud revoked in response to his failure of drug tests. His tentative release date was January 18, 2018. His release would be followed by three years of probation, which he would be allowed to serve in Iowa upon his completion of a thirty-day, inpatient-rehabilitation program following his release. The father testified his drug addiction has been "off and on" for the last ten years. The father has not seen his children since the commencement of his incarceration in July. However, in the three months leading up to the termination hearing, he talked to the two older children almost once a week via phone.

         In September, the mother moved from Iowa to Georgia to live with her parents. She testified she made the move because she has no support system in Iowa to help her stay clean. Since the move to Georgia, the mother has not had any contact with the children, but she has text messaged their foster placements "to ask how they were." A home study was done on the mother's parents' home, but the Georgia Division of Family and Children Services concluded the home was not a suitable placement for the children, citing a number of concerns. At the time of the termination hearing, the mother was not engaged in any substance-abuse treatment but had plans to start outpatient treatment in the coming months. She testified she had not used since moving to Georgia.

         Both parents were honest with DHS about their drug use throughout the case, which was continuous before the father's incarceration in July and the mother's move to Georgia in September. Before the father's incarceration and the mother's move to Georgia, their visitations with the children were sporadic and the longest period of sobriety either parent was able to attain was eleven days. The parents have not provided any financial support to the children throughout the case. The parents seem to plan to return to Iowa and resume their relationship upon the father's release from jail. Both parents recognize that they each trigger the other's drug use.

         Since being placed with their current foster parents, the two older children's behavior has improved, especially since the discontinuance of visits with their biological parents. The children have become integrated into the foster home and are bonded with their foster parents. The youngest child has been placed with her foster mother since she was one month old; the child has a strong bond with her foster mother. Both homes the children are residing in are pre-adoptive placements. There is no bond between the two older children and the youngest child due to lack of meaningful contact. It is undisputed that the parents care deeply for all three children. However, the parents' bond with the children appears to have slightly decreased as the case has progressed.

         The State filed termination petitions as to all three children. Following a hearing in November, the juvenile court denied the State's petitions. The court concluded clear and convincing evidence did not support termination under Iowa Code section 232.116(1)(b) because the father's incarceration and the mother's move to Georgia to obtain sobriety did not amount to intentional acts to abandon or desert the children. As to section 232.116(1)(e), the court concluded clear and convincing evidence did not support a finding that the parents have not maintained significant and meaningful contact with the children during the previous six months. The court also concluded clear and convincing evidence did not support termination under section 232.116(1)(l) because the opinions offered by expert witnesses as to each parent's prognosis were stale, having been formulated several months before the termination hearing and not reexamined in light of the parents' recent sobriety. Next, the court concluded the State established clear and convincing evidence to support termination under section 232.116(1)(h) as to J.M. but found it was in the child's best interests to allow the parents an additional six ...


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