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In re A.D.

Court of Appeals of Iowa

January 9, 2020

IN THE INTEREST OF A.D. and B.W., Minor Children, E.D., Mother, Appellant.

          Appeal from the Iowa District Court for Polk County, Susan Cox, District Associate Judge.

         A mother appeals from the termination of her parental rights as to two children.

          Edward Fishman of Hopkins & Huebner, P.C., Adel, for appellant mother.

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

          Lynn Vogan of Youth Law Center, Des Moines, attorney and guardian ad litem for minor children.

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


         After two years of reunification efforts by the Iowa Department of Human Services (Department), the district court terminated the mother's parental rights concerning her young daughters, B.W., born in 2015, and A.D., born in 2017.[1] The mother appeals, arguing (1) the mother's due process rights under article I, section 9 of the Iowa Constitution and the Fifth and Fourteenth amendments to the United States Constitution were violated when the court permitted amendment of the termination petition at the termination hearing, (2) there was not clear and convincing evidence that the children could not be returned to the mother's custody at the time of the termination hearing, (3) the court erred in not applying an exception to termination under Iowa Code section 232.116(3) (2018), [2] (4) the mother should have been granted an additional six months to work on reunification efforts, and (5) termination is not in the children's best interests.

         On review of the record, we affirm the termination of the mother's parental rights.[3] We find no violation of the mother's due process rights based on the amendment of the termination petition. Like the district court, we find clear and convincing evidence in the record to support termination of the mother's parental rights under Iowa code section 232.116(1)(f)[4] and (h).[5] Lastly, we find that termination serves the children's best interests, a six-month extension was not warranted, and there was no error by the trial court in not applying a permissive exception to termination.

         I. Facts and Prior Proceedings

         Formal court intervention began in early September 2017, when the State filed a child-in-need-of-assistance petition regarding B.W. and A.D. However, this family had the attention of the Department prior to formal court intervention. The mother had a founded child abuse report for providing marijuana to her minor sister in 2014. After B.W.'s birth in 2015, the Department founded a report of child abuse against B.W.'s father. In March 2017, the mother's probation for burglary and unauthorized use of a credit card was revoked, resulting in a jail sentence while she was pregnant. She remained in custody until shortly before A.D.'s birth. A.D. tested positive for marijuana at birth, which resulted in a founded child abuse report against the mother. Despite this positive drug test for newborn A.D., the Department completed a safety plan, which allowed the children to remain in the mother's custody. In May 2017, the mother began receiving voluntary services.

         However, the mother continued to struggle with criminal matters, substance abuse, and mental-health issues. In August 2017, the mother was involved in a physical struggle with the paternal grandmother, with the mother admitting that B.W. was in the middle of this fight. Shortly after that altercation, the mother also admitted to the Department that she would test positive for marijuana.

         Approximately one month later, the mother and B.W.'s father were stopped by law enforcement in a stolen vehicle, with both children in tow. A search of the vehicle resulted in the location of marijuana and marijuana pipes. Both parents admitted to using marijuana and were taken into custody. The children were placed with a relative. On September 5, 2017, the Department determined that the mother had committed child abuse by smoking marijuana daily while caring for both children and being involved in a physical altercation with the paternal grandmother and B.W.'s father while holding B.W. Due to violations of the previously agreed to safety plan, on October 7, 2017 the children were removed from parental custody and placed in relative care. They have remained out of parental custody since that time. There has not been a trial home placement.

         The children were adjudicated to be children in need of assistance in October 2017. While the mother began substance-abuse treatment, she was later convicted of possession of drug paraphernalia. Five months after the adjudication, the mother obtained a psychiatric evaluation where she was diagnosed with bipolar 1 disorder, borderline personality disorder, and major depressive disorder. That psychiatric evaluation referenced the mother's long history of mental-health problems, including being placed outside of her own home when she was fourteen years old, a history of self-harm by cutting, six separate mental-health hospitalizations, and two previous suicide attempts.

         After the arrest of B.W.'s father, the mother reported she ended her relationship with him. She immediately started a new relationship and quickly introduced this individual to her daughters. She lied to the Department about his name to conceal his criminal history. The mother struggled to accept parenting instruction and was combative with family safety, risk, and permanency (FSRP) service providers. Two months later, the mother notified the Department that she was pregnant.

         That same month, May 2018, the mother tested positive for alcohol, which the mother attributed to use of cold medicine. Problems quickly arose in her new relationship, with the mother informing the Department that her new boyfriend, Travis, was controlling and would not let her leave the home. She further disclosed that Travis was physically violent to her and stole a large sum of money from her, causing her utilities to be disconnected. She expressed intent to reunify with B.W.'s father. Less than one month later, the mother was back in a relationship with Travis. Coinciding with this reunification, the Department reported the mother had become increasingly aggressive and hostile with others, making threats to kill relatives or have someone else ...

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