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In re R.W.

Court of Appeals of Iowa

February 6, 2019

IN THE INTEREST OF R.W. and D.F., Minor Children, M.J., Mother, Appellant.

          Appeal from the Iowa District Court for Pottawattamie County, Charles D. Fagan, District Associate Judge.

         The mother appeals the termination of her parental rights to her children.

          AFFIRMED. Kyle J. McGinn of McGinn, Springer & Noethe, P.L.C., Council Bluffs, for appellant mother.

          Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney General, for appellee State.

          Roberta Megel of State Public Defender's Office, Council Bluffs, guardian ad litem for minor children.

          Considered by Potterfield, P.J., and Doyle and Bower, JJ.

          POTTERFIELD, PRESIDING JUDGE.

         The mother appeals the termination of her parental rights to her children, D.F., born in 2012, and R.W., born in 2017.[1] The mother's parental rights were terminated pursuant to Iowa Code section 232.116(1)(d), (e), (f), [2] (h), [3] (i), and (l) (2018). On appeal, the mother challenges the statutory grounds for termination and argues a permissive factor weighs against terminating her parental rights.

         We review the juvenile court's decision to terminate parental rights de novo. In re M.W., 876 N.W.2d 212, 219 (Iowa 2016). "Grounds for termination must be proven by clear and convincing evidence." In re J.E., 723 N.W.2d 793, 798 (Iowa 2006).

         We begin by considering the statutory grounds. "When the juvenile court terminates parental rights on more than one statutory ground, we may affirm the juvenile court's order on any ground we find supported by the record." In re A.B., 815 N.W.2d 764, 773 (Iowa 2012). Paragraphs (f) and (h) include similar elements but apply to children of different ages. Compare Iowa Code § 232.116(1)(f), with id. § 232.116(1)(h). Paragraph (f) applies to children who are age four or older, have been adjudicated a child in a need of assistance (CINA), and have been out of the home the required time. Id. § 232.116(1)(f)(1)-(3). Paragraph (h) applies to children three and under who have been adjudicated CINA and out of the home the required time. Id. § 232.116(1)(h) (1)-(3). The mother does not contest these elements as they apply to D.F. and R.W., respectively. However, she challenges the fourth element of both subsections-whether the children could be returned to her care at the time of the termination hearing. See id. § 232.116(1)(f)(4), (h)(4); see also In re D.W., 791 N.W.2d 703, 707 (Iowa 2010) (interpreting "at the present time" in the statutory language to mean "at the time of the termination hearing").

         The mother argues the children could have been returned to her care at the time of the termination hearing. She faults the department of human services (DHS) for not conducting a home study on the shelter at which she was living before the termination hearing. We acknowledge the testimony that a home study would need to be-and was not-conducted, but this alone is not what prevented the children from returning to their mother's care.

         D.F. was originally removed from the mother's care in July 2016 due to concerns about domestic violence being perpetrated against the mother in front of D.F. and the mother's serious mental-health concerns, including untreated anxiety and bipolar disorder.[4] There were also reports the mother was smoking marijuana while caring for D.F. (and pregnant with R.W.).

         R.W. was born in late May 2017 and was removed from the mother's care on June 1 due to issues of domestic violence between the mother and a different romantic partner. The mother reported the man shook her, slapped her, and bit her on the neck while she was holding R.W.; D.F., who was also present, [5] tried to stop the man and was pushed into a folding chair. The man had been arrested a month before for perpetrating domestic violence against the mother.

         The mother was able to make a number of positive changes, and both R.W. and D.F. were returned to her custody in January 2018. However, they were removed again approximately thirty-five days later for a number of reasons. First, DHS received a report the mother was using methamphetamine and leaving R.W.-still an infant-home alone. The mother eventually completed a hair-stat test, which returned a positive result for methamphetamine. It was reported by D.F.'s school that he missed six days of class during the time period he was in his mother's care, with only a couple of absences being considered excused. Additionally, ...


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