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In re J.B.

Court of Appeals of Iowa

July 24, 2019

IN THE INTEREST OF J.B. and J.B., Minor Children, A.T., Mother, Appellant.

          Appeal from the Iowa District Court for Poweshiek County, Rose Ann Mefford, District Associate Judge.

         A mother appeals from the termination of her parental rights.

          Peter Stiefel, Victor, for appellant mother.

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

          Dusty L. Clements of Clements Law & Mediation, LLC, Newton, guardian ad litem for minor children.

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

          MAY, Judge.

         The juvenile court terminated a mother's parental rights to her children, Ja.B. and Jo.B. On appeal, the mother contends the juvenile court erred in (1) denying the mother's motion for recusal; (2) denying the mother's motion to continue; (3) granting a motion to amend the termination petition; (4) concluding the statutory requirements for termination were satisfied; (5) finding termination was in the children's best interests; (6) declining to apply a permissive exception to termination; and (7) declining to provide her with an additional six months to work toward reunification.[1] We affirm the juvenile court.

         I. Background Facts and Proceedings

         Ja.B. and Jo.B. were born in 2012 and 2016, respectively. Ja.B. suffers from short bowel syndrome, a life-threatening medical condition that requires an intensive treatment regimen. In 2016, the Iowa Department of Human Services (DHS) became involved with this family after receiving reports that Ja.B.'s medical needs were not being met.

         Ja.B. received medical care at the Children's Hospital and Medical Center in Omaha, Nebraska. However, the mother did not bring him to several of his scheduled appointments. The hospital banned both parents because they made "concerning statements." As a result, most of Ja.B.'s treatment was transferred to the University of Iowa Hospitals and Clinics.

         In an effort to avoid removing the children from the home, the juvenile court ordered DHS to provide daily homemaker-home health aide services to the family. However, by May 2017, the State applied for removal of the children from the home because of the mother's admitted use of marijuana, the parents' violation of an established safety plan, the presence of methamphetamine paraphernalia in the home, evidence the mother was not following essential medical protocol with regards to Ja.B., and reports that Ja.B. was found playing with knives. The same day, the court issued an order removing the children. Both children were "dirty and unclean" at the time of removal.

         Jo.B. entered foster care. Ja.B. was admitted to the University of Iowa hospital for a central line infection. Ja.B. also underwent drug testing. He tested positive for marijuana, methamphetamine, and amphetamine. Upon Ja.B.'s discharge, he joined the same foster family that was caring for Jo.B.

         In June 2017, the juvenile court adjudicated Ja.B. as a child in need of assistance pursuant to Iowa Code section 232.2(6)(b), (c)(2), and (e) (2017). The court also adjudicated Jo.B. as a child in need of assistance pursuant to section 232.2(6)(c)(2).

         The same month, Ja.B. was admitted to the hospital over concerns of a central line infection. However, the mother did not visit Ja.B. in the hospital because she had an active warrant related to a possession charge. Ultimately, the mother turned herself in and pled guilty to the charge.

         Also in June, the mother received referrals for the Parents as Teachers and Parent Partner programs. But in August, the Parents as Teachers provider could not make contact with the mother. So the provider ventured out to her home. The provider found the home abandoned and dismissed the family from the program. The family was also dismissed from the Parent Partner program due to a lack of engagement. The family again sought out the Parent Partner program in October, but they were again dismissed due to lack of engagement.

         In early 2018, the mother was charged with child endangerment for her care of Ja.B. preceding removal. She pled guilty. The district court entered a no-contact order between the mother and the children. It was later modified to permit supervised visitation between the children and mother.

         In May, the juvenile court held a permanency and termination hearing. Both parents failed to attend due to "sickness."

         The next month, the mother's probation was revoked because she missed two appointments with her probation officer and tested positive for methamphetamine and marijuana.

         In October, the juvenile court terminated both parents' rights. Both parents appealed. This court reversed both terminations on procedural grounds. See In re J.B., No. 18-1807, 2018 WL 6706266, at *1 (Iowa Ct. App. Dec. 19, 2018) (concluding "the juvenile court abused its discretion in failing to continue the combined permanency and termination hearing and proceeding to terminate the parents' parental rights").

         On remand, the mother moved for the presiding judge to recuse. The mother reasoned that because the judge presided over the first termination hearing and issued an order terminating her parental rights, the judge could not be impartial as the case proceeded forward. The juvenile court denied the motion.

         The juvenile court scheduled a permanency and termination hearing for January 23, 2019. On the day before the hearing, the mother moved for a continuance. She argued she had received insufficient notice of the hearing. The mother did not appear at the hearing, but her attorney did. Her attorney advised the court that the mother had transportation issues and concerns regarding road conditions.

         Ultimately, the court granted the continuance and rescheduled the hearing for February. Later, the hearing was again rescheduled for March 20.

         On March 19-the day prior to the rescheduled hearing-the State moved to amend the petition to correctly cite one of the statutory grounds for termination with respect to Ja.B.[2] At the termination hearing, the mother's counsel objected to the amendment. Counsel argued the mother is entitled to notice of the grounds for termination at least seven days prior to the hearing. The court granted the motion to amend.

         The mother did not appear for the March 20 termination hearing. The mother's counsel moved for a continuance based on the mother's absence. Counsel advised the court that the mother had planned on attending and he did not know why she was absent. He further advised the court that he had received no answer to his text messages and calls to the mother from ...

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