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In re B.M.

Court of Appeals of Iowa

September 26, 2018

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

          Appeal from the Iowa District Court for Sioux County, Robert J. Dull, District Associate Judge.

         A mother appeals the termination of her parental rights to her one-year-old child. REVERSED AND REMANDED.

          Jacqueline L. Grotewold of McGill, Murphy, Collins & Bixenman, PLC, Rock Valley, for appellant mother.

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

          Philip J. De Koster of De Koster & De Koster, PLLC, Hull, guardian ad litem for minor child.

          Considered by Danilson, C.J., and Vogel and Tabor, JJ.

          TABOR, Judge.

         The guardian ad litem (GAL) for one-year-old B.M. filed a petition to terminate the parental rights of the child's mother, Lacey.[1] At the combined permanency and termination trial, the State's only witness was B.M.'s foster parent. In terminating Lacey's parental rights, the juvenile court emphasized "the stability and care [B.M.] needs and deserves can best be supplied by his current foster parents, who desire to adopt him." After carefully reviewing the record, we find the State failed to prove the statutory grounds for termination by clear and convincing evidence. Accordingly, we reverse the termination order and remand to the juvenile court.

         I. Facts and Prior Proceedings

         The Iowa Department of Human Services (DHS) took notice of this family in March 2017 after allegations the parents were using illegal drugs. Robert, named as B.M.'s father on the birth certificate, admitted he was injecting methamphetamine and Lacey was smoking marijuana.[2] The juvenile court entered an order temporarily removing B.M.-then two months old-from his parents' care and placed him in the custody of the DHS. The court adjudicated B.M. as a child in need of assistance (CINA) as defined by Iowa Code section 232.2(6)(b), (c)(2), and (n) (2017).

          Following B.M.'s removal, the court ordered Lacey to undergo a substance-abuse evaluation and participate in DHS recommended services including: Family Safety, Risk, and Permanency (FSRP) assistance, random drug testing, and substance-abuse treatment. The DHS offered Lacey fully supervised two-hour visitation with B.M. once per week. Lacey, who was twenty-one-years old, moved into her parent's home in June 2017 and regularly attended visitation with B.M. But she was an inconsistent participant in other services, missing an average of two substance-abuse treatment appointments per month during the summer of 2017.

         At a review hearing in August, the GAL offered his opinion Lacey "had not taken significant steps to address her substance abuse and mental health issues since the last hearing" and had not made measurable strides in demonstrating her ability to care for B.M. The GAL also expressed concern that Lacey focused on continuing a relationship with her former boyfriend Robert rather than caring for B.M. But the DHS report submitted at the same hearing cast Lacey's progress in a more favorable light, describing her as "responsive" to B.M.'s needs, "even though she may not know how to appropriately attend to his needs." The DHS also reported Lacey provided necessary supplies for B.M. during visits and used the skills she was learning during individual sessions with her son. In its dispositional order, the juvenile court noted Lacey recognized her relationship with Robert was "toxic." Nevertheless, the court accepted the GAL's view that Lacey was not addressing her "parenting deficiencies." The court continued the proceedings and scheduled a permanency hearing for November.

         Lacey participated in substance-abuse and mental-health treatment until her insurance lapsed in the fall of 2017. An FSRP progress report written in October stated "Lacey was actively working to make changes in her life." A drug treatment center also reported Lacey had nine consecutive negative drug tests dating back to June. Lacey consequently requested an increase in visitation with B.M. and DHS obliged, providing two hours of semi-supervised visitation three times per week at her residence. DHS also reported Lacey was "able to parent [B.M.] appropriately during visitations . . . [with] minimal prompting and suggesting . . . ."

         A family case plan prepared by DHS for the November permanency hearing reported, "[T]here are no immediate safety concerns pertaining to [B.M.'s] care," and Lacey "has demonstrated she is open to suggestions to parenting, and can absorb what she is taught over time." The family case plan further found Lacey achieved "significant" progress "on parent skill building . . . [i]t would now appear that Lacey is motivated to have [B.M.] in her care, and is willing to comply with the services necessary to achieve this goal." The report concluded by recommending an additional six months of time to allow Lacey to work towards reunification with B.M.

         In contrast, a report submitted by the GAL before the November hearing alleged "Progress in this case has been perilously slow" but "we have an amazing foster family here." Citing a "lack of focus" by Lacey, the GAL said he was "hopeful" Lacey's "new habits" would continue, but was "not convinced that [was] certain." The GAL expressed dissatisfaction with DHS's recommendation for a six-month extension. The GAL recommended the court direct the State to file a termination petition in early February if reunification had not occurred by then. The juvenile court's November disposition order concurred with the recommendations in the DHS family case plan with one additional finding-despite reasonable efforts, it remained contrary to B.M.'s best interest to return to parental custody. The court set a permanency hearing for May 2018.

         Lacey resumed mental-health and substance-abuse treatment immediately following the November permanency hearing. In January 2018, she again requested increased visitation. The GAL resisted, arguing "Lacey does not identify how increased visitation would be in [B.M.'s] best interest or how it would help her respond to the various services offered by the DHS and assist her in being a better parent." The GAL also asserted, "Although Lacey has remained clean, significant other issues exist which would likely result in continued harm to [B.M.] should either increased visitation or reunification occur." The GAL again cited Lacey's "lack of focus" and "inability to make the changes in her life necessary for proper parenting."

         The juvenile court set a February 15 hearing on Lacey's motion for increased visitation. On February 4, the DHS authorized longer interactions and overnight visitation between Lacey and B.M. Ten days later, the GAL filed a petition to terminate parental rights, citing paragraphs (e), (h), and (l) of section 232.116(1). As factual support, the GAL listed Lacey's lack of overnight visits with B.M.; her failure to address "her own recovery" and her inclination to "place blame" on others, including social workers and the foster parents; her failure to regularly participate "in [Narcotics Anonymous] and other substance abuse treatment" and "although remaining drug free" her recent positive test for alcohol; her lack of reliable transportation; her lack of employment; and generally that she was "not ready to fully assume the role of being a parent as she has not sufficiently addressed her mental health needs, substance abuse issues, codependency issues, and has not demonstrated the requisite parenting skills."

         The court did not hold the scheduled February 15 hearing on Lacey's request for expanded visitation. But DHS approved two overnight visitations; the second of which occurred February 21. When the FSRP worker dropped off then one-year-old B.M., she raised concerns with Lacey and her mother that a space heater in the house presented a danger because B.M. was starting to crawl. The FSRP worker also addressed safety concerns about cables running from the entertainment center, wall outlets, and a dog's tennis ball B.M. had placed in his mouth. Based on these issues, the FSRP supervisor directed the worker to end the overnight visit at 8 a.m.-several hours earlier than scheduled.

         Lacey continued to regularly attend treatment for substance abuse and mental health and participate in semi-supervised visitation. The final DHS update noted Lacey was ready for increased visitation until mid-January, when she began to regress. The report further described Lacey as "responsive and well bonded to [B.M.] and his needs." Again by contrast, the final GAL report recommended termination, in part, due to the GAL's belief Lacey did not have a strong bond with B.M. The GAL asserted B.M. was more bonded with the foster family, citing an instance where B.M. hurt his head and expressed a "clear preference" for his foster mother over Lacey despite both individuals being present. The GAL stressed Lacey's inability to recognize safety concerns and her "questionable" mental health.

          The juvenile court held a combined permanency and termination hearing in May 2018. The State called one witness-B.M.'s foster father, who discussed B.M.'s bond with the foster family and their desire to adopt him. The State also submitted eight exhibits: (1) a May 2018 report from Lacey's substance-abuse and mental-health counselor tracking her overall progress; (2) a February 2018 email from the counselor noting a positive test for alcohol; (3) a list of calls Robert made to Lacey from jail dating from August through November 2017; (4) text message exchanges between Robert and Lacey in January and February 2018; (5) FSRP reports; (6) B.M.'s speech-therapy records; (7) the DHS family case plan; and (8) the GAL report.

         Lacey's attorney called four witnesses: Lacey, the DHS caseworker, the FSRP worker, and Lacey's mother. The DHS worker described the progression of the case as "a roller coaster ride" with Lacey initially struggling, then "grabb[ing] onto the skills that she learned," and finally becoming disillusioned in the two months leading up to the termination hearing. The DHS worker testified she had safety concerns about reuniting B.M. with his mother, but then clarified that her concerns focused on "the mere financial aspect of Lacey's ability to care for him and his basic needs." The FSRP worker testified Lacey was "earnestly trying to do what she needed to do" until February when her motivation dissipated. When asked if B.M. could be reunited with Lacey at the time of the termination hearing, the FSRP worker said she was "not qualified to answer that." Lacey testified she had been living with her parents for about one year and planned to do so until she could "get back on her feet." She was in the process of applying for disability benefits. She also intended to take the necessary course to reinstate her driver's license. Lacey testified she was attending substance-abuse treatment "religiously," in addition to seeking mental-health therapy, and following her medication management regime for her diagnosed anxiety. Lacey testified she had been consistently asking for increased visitation and the overnight sessions with B.M. went well, though she recognized the FSRP worker's safety concerns. Lacey testified B.M. had never suffered an injury during visitation. Lacey's mother also addressed the safety concerns raised about her home, noting she has three other young grandchildren who visit without incurring harm.

         The juvenile court terminated Lacey's rights under paragraphs (h) and (l) of section 232.116(1). The court made no finding regarding the GAL's request for termination under paragraph (e). The entirety of the juvenile court's analysis appears in the following paragraph:

While it initially appeared the services being offered to Lacey were having some success in correcting the need for [B.M.'s] continued removal from her care, over the past few months there has been a regression, and it continues to be contrary to [B.M.]'s best interest to consider returning him to his mother despite her protestations to the contrary. She is unemployed, has no residence of her own, and has no driver's license. She is incapable of caring for [B.M.] on her own. Without a significant change in her situation and an extended period of stability and independence, it will remain contrary to [B.M.]'s best interest to consider returning him to her care, and that period cannot be predicted to happen in the foreseeable future.

         The court concluded its termination order by stating, "[B.M.] is a child who has been taken in by a responsible, stable family and has ...

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