In re A.D.W.

• Decision Date: 08 August 2012
• Docket Number: No. 12–1060.,12–1060.
• Citation: 821 N.W.2d 778
• Parties: In the Interest of A.D.W., A.L.W., and X.M.M., Minor Children, A.W., Father of A.D.W. and A.L.W., Appellant, A.D.W., Mother, Appellant.
• Court: Iowa Court of Appeals

821 N.W.2d 778

In the Interest of A.D.W., A.L.W., and X.M.M., Minor Children, A.W., Father of A.D.W. and A.L.W., Appellant, A.D.W., Mother, Appellant.

No. 12–1060.

Court of Appeals of Iowa.

Aug. 8, 2012.

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

A mother and father appeal the juvenile court's termination of their parental rights. AFFIRMED.

Roberta J. Megel, State Public Defender's Office, Council Bluffs, for appellant-father.

Marti D. Nerenstone, Council Bluffs, for appellant-mother.

Thomas J. Miller, Attorney General, Janet L. Hoffman, Assistant Attorney General, Matthew Wilber, County Attorney, and Dawn Landon, Assistant County Attorney, for appellee.

Scott Strait, Council Bluffs, for appellee-father of X.M.M.

Benjamin Pick, Council Bluffs, attorney and guardian ad litem for minor children.

Considered by EISENHAUER, C.J., and DOYLE and TABOR, JJ.

TABOR, J.

A mother appeals the termination of her parental rights to three children: eight-year-old X.M.M., four-year-old A.L.W, and three-year-old A.D.W. The father of the two younger children also appeals the termination of his parental rights.¹ Both parents argue the State did not prove grounds for termination under Iowa Code section 232.116(1) (2011). The mother raises four additional claims: (1) she was entitled to a continuance because she did not receive proper notice of the termination hearing; (2) the juvenile court improperly considered an exhibit containing photographs from her Facebook page; (3) the juvenile court erred in denying her motion to appoint an attorney for X.M.M. in addition to his guardian ad litem; and (4) termination was not in the children's best interests.

Because the parents did not maintain “significant and meaningful contact” with their children, we conclude termination was proper under section 232.116(1)(e). In addition, we find no merit to the mother's remaining assignments of error. Accordingly, we affirm.

I. Factual Background and Proceedings

Melissa and Adam were married with two children, A.L.W. and A.D.W. X.M.M., Melissa's older son from a previous relationship, also lived with them in Council Bluffs. In July 2010, the family began receiving voluntary services from the Department of Human Services (DHS) following reports that their two sons, X.M.M. and A.L.W., had suspicious bruises; Adam was violent toward Melissa; the parents had substance abuse problems; and the parents were locking their children in a bedroom.

In October 2010, the DHS removed the children from their parents' home after a child protection assessment revealed a “chaotic” household with broken glass on the floor; a social worker also saw a bruise on Melissa's face that looked like a handprint. By January 2011, the DHS returned the children home amidst encouraging cooperation from the parents. But the relationship between Melissa and Adam soon deteriorated. On April 25, 2011, while a service provider was at the home, Adam and Melissa fought in the bedroom. They yelled and cursed at one another, while the provider watched the children in the next room. The worker overheard Melissa tell Adam to “get off.” Adam threatened to kill everyone in the home and said he had twenty-four bullets for his gun. The provider called the police, and officers had to kick in the door to gain entry into the home. In May, Adam tested positive for cocaine. The parents were “in and out of jail” during early 2011, their home was unsanitary, and they failed to comply with drug screening. The DHS removed the children again in July 2011.

Melissa was hospitalized with a MRSA (methicillin-resistant staphylococcus aureus) infection in August 2011. After her release, she was required to take antibiotics through a PICC (peripherally inserted central catheter) line. Melissa attributed her inability to meet the case plan recommendations to her illness. The social worker found Melissa to be “very evasive” about her medical appointments and “reserved” about the information that she shared with the DHS concerning her treatment.

Melissa attended visits with the children fairly consistently between July and December 2011, but after December she missed ten of the thirty-four scheduled sessions. During the interactions Melissa did attend, she had difficulty controlling the three children or responding to their demands; the social worker recalled that the visits were “not a fun experience.” Melissa admitted in her testimony that the visits were “chaotic.” Melissa did not participate in parent-child interactive therapy (PCIT) that was offered by the DHS and did not pursue recommended mental health counseling. Melissa completed only two of twenty scheduled drug screens and participated in no testing since November 2011. Melissa's employment has been inconsistent and she was evicted from her home in March 2012. After her eviction, she stayed with friends in Omaha and did not provide the DHS with an address.

In September 2011, the district court revoked Adam's probation on a drug conviction. At the time of the termination hearing he was serving his indeterminate ten-year sentence at the Newton Correctional Facility. His tentative discharge date is not until August 2015.

All three children have been with the same foster family since July 29, 2011. The foster mother described their initial behaviors as “very, very chaotic.” A.D.W. was “sickly” and lacked communication skills. A.L.W. was withdrawn and would scream if anyone tried to touch him; he has since been diagnosed with mild autism. X.M.M. was “extremely angry, hurt, upset, and cried.” The children were mean to one another. After living in the structured environment provided by the foster family and receiving multiple services, the children are getting along better. They have integrated into the foster family's routine and are showing more affection. The foster mother testified the children are upset after visits with their biological parents and regress in their behaviors.

On February 27, 2012, the Pottawattamie County Attorney filed a petition to terminate parental rights against both Melissa and Adam, as well as X.M.M.'s father Jeremy. The juvenile court considered the matter during evidentiary hearings on April 24 and May 3, 2012. The court issued its order on May 25, 2012, terminating the rights of all three parents. Melissa and Adam filed separate appeals.

II. Standard of Review

The proper standard of review “for all termination decisions” should be de novo. In re P.L., 778 N.W.2d 33, 40 (Iowa 2010) (overruling prior cases applying an abuse-of-discretion standard of review to the question whether termination is in the best interests of the children).

P.L. does not make explicit whether the de novo standard extends to juvenile court rulings on issues such as motions to continue, motions to appoint separate counsel, or the admissibility of evidence. Previously Iowa's appellate courts reviewed such subsidiary rulings for an abuse of discretion. See, e.g., In re T .C., 492 N.W.2d 425, 429 (Iowa 1992) (finding admission of evidence in a termination case was “within the discretionary province of the juvenile court” as directed by Iowa Code section 232.96(6)); In re A.T., 744 N.W.2d 657, 662 (Iowa Ct.App.2007) (asking whether juvenile court “abused its discretion” in finding one attorney could represent child's legal interests and best interests); In re C.W., 554 N.W.2d 279, 281 (Iowa Ct.App.1996) (declining to reverse denial of motion to continue unless “injustice will result to the party desiring the continuance”). It is our belief that juvenile courts continue to enjoy discretion to enter rulings that impact the management of the termination trial and should only be reversed if their exercise of that discretion is unreasonable. See generally Timothy Storm, The Standard of Review Does Matter: Evidence of Judicial Self–Restraint in the Illinois Appellate Court, 34 S. Ill. U. L.J. 73, 89 (2009) (explaining the abuse-of-discretion standard of review “is traditionally reserved for decisions made by a trial judge in overseeing his or her courtroom or in maintaining the progress of a trial”).

III. Failure to Maintain Significant and Meaningful Contact

The juvenile court terminated the parental rights of both Melissa and Adam based on Iowa Code section 232.116(1)(e), among other grounds.² This provision allows termination if a court finds that all of the following have occurred:

(1) The child has been adjudicated a child in need of assistance pursuant to section 232.96.

(2) The child has been removed from the physical custody of the child's parents for a period of at least six consecutive months.

(3) There is clear and convincing evidence that the parents have not maintained significant and meaningful contact with the child during the previous six consecutive months and have made no reasonable efforts to resume care of the child despite being given the opportunity to do so.

Iowa Code § 232.116(e).

The legislature defined “significant and meaningful contact” as including, but not limited to

the affirmative assumption by the parents of the duties encompassed by the role of being a parent. This affirmative duty, in addition to financial obligations, requires continued interest in the child, a genuine effort to complete the responsibilities prescribed in the case permanency plan, a genuine effort to maintain communication with the child, and requires that the parents establish and maintain a place of importance in the child's life.

Id.

Adam claims on appeal that the State's evidence did not satisfy the third element of section 232.116(e). He contends he has “maintained ‘meaningful and significant contact’ with his children as much as his incarceration would allow.” He points out that the DHS was aware he could not comply with the case plan based on his imprisonment. We find clear and convincing evidence in the record that Adam has not affirmatively assumed the duties of parenting. Even...