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In re J.W.

Court of Appeals of Iowa

May 1, 2019

IN THE INTEREST OF J.W., K.W., and G.J., Minor Children, K.W., Mother, Appellant, G.J., Father of G.J., Appellant.

          Appeal from the Iowa District Court for Johnson County, Jason A. Burns, District Associate Judge.

         Parents separately appeal the termination of their parental rights to their child, and the mother additionally appeals the termination of her parental rights to two of her other children.

          Sara Strain Linder of Bray & Klockau, P.L.C., Iowa City, for appellant mother.

          Ellen R. Ramsey-Kacena, Cedar Rapids, for appellant father of G.J.

          Thomas J. Miller, Attorney General, and Anna T. Stoeffler, Assistant Attorney General, for appellee State.

          Anthony Haughton of Linn County Advocate, Inc., Cedar Rapids, guardian ad litem for minor children.

          Considered by Vaitheswaran, P.J., Tabor, J., and Scott, S.J. [*]

          SCOTT, SENIOR JUDGE.

         Parents separately appeal the termination of their parental rights to their child, G.J., born in 2015, and the mother additionally appeals the termination of her parental rights to two of her other children, J.W. and K.W., born in 2009 and 2011.[1] The father argues the Iowa Department of Human Services (DHS) failed to make reasonable efforts to facilitate reunification and termination is not in G.J.'s best interests because a guardianship could have been established in the paternal grandmother. The mother challenges the sufficiency of the evidence underlying the grounds for termination cited by the juvenile court, argues termination is not in the children's best interests due to the parent-child bond, and maintains she should have been granted additional time to work toward reunification.

         I. Background Facts and Proceedings

         The parents lived in Illinois when the youngest child was born in 2015. A few months later, the mother and children moved to Iowa. The father stayed in Illinois, living with his mother; he has never lived on his own and has always relied on his mother for stable housing. Thereafter, contact between the father and G.J. was infrequent. The mother has a history of involvement with child-welfare services in Illinois and suffers from depression. Both parents have histories of criminal activity.

         The children came to the attention of DHS in August 2017 upon information that the mother left the youngest child without proper supervision for at least ninety minutes. A subsequent child-abuse assessment was founded for denial of critical care. The next day, DHS learned the mother intended to turn herself in on criminal charges and leave the children with their maternal grandmother. DHS advised the maternal grandmother was an inappropriate caregiver and the children should not be left with her. The mother agreed she would not leave the children with the maternal grandmother. Three days later, however, DHS learned the mother left the children with the maternal grandmother. The children were removed from the mother's care and placed in DHS custody on August 28. The mother left the children with the maternal grandmother or allowed them to be around her on a number of occasions throughout the life of the case despite being told the maternal grandmother was an inappropriate person to be around the children.

         Both parents appeared at the September 1 removal hearing, during which all parties stipulated to continued removal.[2] The court's removal order noted the "father supports a return of the children to their mother if possible; but if that is not possible, he requests the children be placed with him [and] specifically requests an expedited" home study pursuant to the Interstate Compact on the Placement of Children (ICPC). The court authorized DHS to conduct an ICPC study as to the father's home but did not expressly order that one be conducted. The DHS worker testified that the mother was doing well in progressing with case-plan goals at this time. Ultimately, a trial home placement of the children with the mother commenced on September 7.

          An uncontested adjudication hearing was held on September 27. The order of adjudication mandated that "upon request of [the father], . . . [DHS] establish a visit plan between [the father] and his child. The [DHS] is given discretion to determine the frequency, duration, and level of supervision as deemed appropriate." The court also ordered that a social-history report be completed. Both parents were provided social-history questionnaires, but only the mother completed and returned it to DHS. The social-history report ultimately concluded placement with the mother was the best current alternative, while placement with any of the children's respective father's was not an option because none of them have had any involvement in the children's lives. A family team meeting was held the day after the adjudication hearing. A case plan subsequently filed by DHS noted the father was called several times to be invited to the meeting but he did not respond. The plan also noted a visit was set up for the father at his request, but he did not show up for it.

         During the trial home placement, there were continuing concerns regarding the children's attendance at school. There were also ongoing concerns for the mother's mental health and who she was allowing to supervise the children. DHS requested the mother to undergo a mental-health evaluation early on in the case, but the mother did not do so until shortly before the termination hearing. Substance abuse also became a concern. Specifically, in December 2017, the mother was kicked out of her shelter for testing positive for marijuana. Thereafter, DHS requested the mother to submit to drug testing. The mother declined to do so until August 2018, at which time she tested positive for marijuana. Thereafter, DHS requested the mother to submit to random drug testing, but the mother did not report to any of the random tests.

         At the dispositional hearing in December 2017, the State and DHS requested that the trial home placement with the mother end and the children be placed in family foster care. The court declined to terminate the trial home placement but provided DHS could terminate the placement upon violations of the safety or permanency plans or for the children's safety. The court noted in its order that "reasonable efforts were made" and "[t]here are no requests for additional services." On January 5, 2018, DHS ended the trial home placement and placed the children in foster care after learning the mother did not follow through on facilitating the youngest child's attendance at protective daycare and the mother and children became homeless.

         A permanency-review hearing was held in February, which neither parent attended. The court continued the permanency goal as reunification with the mother and granted an additional six months to work toward reunification as to the youngest child. Counsel for the mother did not request any additional services, but the father's counsel requested that DHS "follow up on the ICPC home study regarding his home." The court ordered DHS to, within ten days, "follow up on ICPC home study request by . . . father to ascertain that Iowa has done its part and to expedite the home study progress." In May, DHS filed an updated case plan in which it noted the father had not engaged in services and stated:

This worker has been trying to obtain an ICPC home study of his home in Chicago, IL however, this has been unsuccessful. This worker no longer has a valid phone number for [the father] and the address he supplied to this worker when the case began mail is being returned to this worker-return to sender, attempted-not known- unable to forward.

         At the termination hearing, the DHS worker testified she has only had limited contact with the father, which occurred early on in the case. She testified she sent the father letters at his Illinois home every month in an attempt to communicate with him and get him involved in the case. However, in July, DHS learned from G.J.'s paternal grandmother the father was in prison in Kentucky "and is not going to be getting out anytime soon." The father testified at the termination hearing he was imprisoned on charges of fraudulent use of a credit card and tampering with evidence but he would be paroled in July 2019. The paternal grandmother asked if she could be considered a placement option for G.J. DHS initiated an ICPC home study request to Illinois as to the grandmother. The only service the father requested after the commencement of his incarceration was to have an ICPC home study conducted as to the paternal grandmother's home. He did not contact DHS to request visitation by any medium at his place of incarceration, nor did he alert the juvenile court of any concern regarding visitation.

         By August 2018, DHS recommended that the permanency goal be modified to termination of parental rights. At the subsequent permanency-review hearing, the court ordered that the ICPC home study as to the paternal grandmother be completed as quickly as possible and authorized visitation between G.J. and the grandmother through electronic means. However, the court also directed the State to initiate termination proceedings. Thereafter, DHS began facilitating electronic ...


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