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In re C.D.

Court of Appeals of Iowa

April 18, 2018

IN THE INTEREST OF C.D., K.S., and C.P., Minor Children, T.S., Mother, Appellant.

          Appeal from the Iowa District Court for Polk County, Louise M. Jacobs, District Associate Judge.

         A mother appeals the termination of her parental relationship with three children.

          Lisa M. Noble of Lisa Noble Law Office Inc., Des Moines, for appellant mother.

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

          Erin E. Mayfield of Youth Law Center, Des Moines, guardian ad litem for minor children.

          Considered by Doyle, P.J., and Tabor and McDonald, JJ.

          TABOR, JUDGE.

         A mother, Tina, contests the juvenile court order terminating her parental relationship with three children: K.S. born in 2010, C.D. born in 2012, and C.P. born in 2015.[1] Her petition on appeal first alleges the State did not offer clear and convincing evidence to meet the statutory grounds for termination. But Tina concentrates on her desire for an additional six months to reunify with her children. She also argues termination is not in the children's best interests. Finally, Tina contends the Iowa Department of Human Services (DHS) did not make reasonable efforts to return the children to her care.

         After a close examination of the record, our conclusion mirrors that of the juvenile court.[2] Despite making some progress in managing her mental health, Tina's parenting abilities are still not strong enough to ensure a safe return home for the three children. At the time of the termination hearing, the children had been out of the home for more than fourteen months with no move toward unsupervised visitation. And Tina had been receiving services through the DHS for at least seventeen months. We decline to further postpone permanency for the three children under these circumstances.

         I. Facts and Prior Proceedings

         A medical condition suffered by Tina's middle child, C.D., prompted the DHS to intervene with this family. Doctors diagnosed C.D. with bilateral club foot, a birth abnormality where the infant's foot is twisted out of position. In October 2015, C.D. travelled to University Hospitals and Clinics in Iowa City for corrective surgery known as tibialis anterior tendon transfer. After wearing a cast for six weeks, C.D. required physical therapy to teach him to walk again because his foot was in a new position. Tina did not comply with the follow-up physical therapy- missing four scheduled appointments and imperiling the success of the surgery and the child's ability to walk normally. Child Protective Services received reports three-year-old C.D. regressed to crawling rather than walking during this time. In April 2016, a child-abuse assessment found a denial of critical care; although Tina blamed the lack of follow-up on travel challenges, the DHS asserted transportation assistance was offered but declined by the parents. The State filed a petition asking that C.D. be adjudicated as a child in need of assistance (CINA). After the DHS intervened, C.D. received the physical therapy he needed.

         In May 2016, the State filed petitions asking the court to likewise adjudicate K.S. and C.P. as CINA. The petitions alleged Tina was doing "a poor job of supervising" the children and the children were physically aggressive toward each other. In August 2016 C.P.'s father, Nathan, assaulted Tina, which contributed to a breakdown in her mental health requiring hospitalization.[3] The children were removed from Tina's custody, and each placed in a different home. The juvenile court adjudicated the children as CINA in September 2016.

         Despite the no-contact order, the record shows Tina maintained a relationship with Nathan until February 2017. And even after Tina severed ties with Nathan, she failed to achieve enough independence to reassure the DHS workers. According to the DHS caseworker's testimony, Tina did not establish a home of her own, but instead she moved into the house of acquaintances and developed an "unhealthy" level of "codependency" with her new male roommate. The DHS disapproved of the roommate attending visitations because he would "interject" for Tina and "he would tell her what she should and shouldn't do with regards to what the Department was requesting from her."

         The caseworker also had continuing concerns about Tina's mental health. Tina received disability benefits based on her diagnoses of depression, anxiety, Tourette syndrome, attention deficit/hyperactivity disorder, and post-traumatic stress disorder. Yet during the pendency of the CINA case, Tina was sporadic in her participation in therapy sessions and was inconsistent with medication management. Tina did make some strides late in the game, as an October 2017 therapy progress report indicated, Tina was becoming "more transparent about her past domestic violence history and is currently processing how this has affected herself and her children." The therapist recommended continued ongoing therapy and medication management.

         At the time of the termination hearing, Tina had two ninety-minute interactions with the children each week. The family safety, risk, and permanency (FSRP) worker described Tina as caring and positive during the visits. But the FSRP worker also reported Tina had difficulty handling the needs of all three children at once; Tina continued to need "redirection" from the worker to engage in safe and appropriate discipline with the children during the supervised visitations. When the FSRP worker tried to offer a third visit per week, the children started acting out-crying, pulling one another's hair, and throwing things. The DHS caseworker was not confident Tina, on her own, could protect her children from physical harms, expressing her professional opinion: "[i]f Tina didn't have professionals around and if she was taking the children out in public" she "couldn't make sure one doesn't run in front of a car."

         In November 2017, the juvenile court held a hearing on the State's petition to terminate parental rights. Tina testified she was benefitting from therapy addressing domestic-violence and codependency issues, but "[t]he healing process is going to take a very, very long time." Tina told the court: "I know I'm capable of raising my kids." But she candidly added: "I know I'm not capable right now at this second, but six months from now, you know, I'm trying to get on FUP [Family Unification Program Section 8 public housing]." After the trial, Tina's counsel submitted a "closing argument in support of granting a six month extension for reunification." In December 2017, the juvenile court issued an order terminating Tina's relationship with the children, citing Iowa Code section 232.116(1)(f), (h), and (k) (2017). Tina challenges that order on appeal.

         II. Analysis of Tina's Claims

         A. Statutory Grounds

         When the juvenile court terminates parental rights on more than one statutory basis, we may affirm the order on any ground supported by clear and convincing evidence. D.W., 791 N.W .2d at 707. In this case, we find clear and convincing evidence to support termination under section 232.116(1)(f)[4] for C.D. and K.S., the two older children, and section 232.116(1)(h)[5] for C.P., the youngest child. The age parameters, CINA adjudication, [6] and removal timelines are met for both provisions. The only debatable point is whether the State offered clear and convincing evidence the children could not be ...

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