In re Interest of S.H.
| Decision Date | 18 July 2018 |
| Docket Number | No. 18-0804,18-0804 |
| Citation | 922 N.W.2d 106 (Table) |
| Parties | IN the INTEREST OF S.H., Minor Child, K.K., Mother, Appellant. |
| Court | Iowa Court of Appeals |
Larry W. Johnson of Walters & Johnson, Iowa Falls, for appellant mother.
Thomas J. Miller, Attorney General, and Anagha Dixit, Assistant Attorney General, for appellee State.
Alesha M. Sigmeth Roberts of Sigmeth Roberts Law, P.L.C., Clarion, guardian ad litem for minor child.
Considered by Vogel, P.J., and Doyle and Bower, JJ.
A mother appeals the termination of her parental rights. We find the mother waived her reasonable-efforts claim, the court was not required to halt the termination proceedings to determine the mother’s competency, and the court properly denied her request for a six-month extension prior to termination. We affirm.
D.H., father, and K.K., mother, are the biological parents of S.H., born in 2016. The family came to the attention of the Iowa Department of Human Services (DHS) when the child tested positive for marijuana at birth. On June 21, 2016, the juvenile court entered a custody order for the child to be placed with the father under the protective supervision of DHS after determining the mother had significant untreated mental health issues. Following the custody order, the mother was the subject of an involuntary, mental-health commitment and participated in in-patient mental-health treatment. In September, the child was adjudicated a child in need of assistance (CINA) pursuant to Iowa Code section 232.2(6)(n) (2016).
During the CINA action, the juvenile court found reasonable efforts were offered to the mother to work towards reunification. The permanency plan adopted by the juvenile court required the mother to participate in recommended mental health treatment, including oral medication and injections, and participate in Family Safety, Risk, and Permanency (FSRP) services. The juvenile court granted the mother partial care and custody under the direction of DHS in February 2017.
On May 4, a probation officer for the father conducted an unannounced home visit and reported the mother had been smoking marijuana and there was marijuana in the home. The father voluntarily placed the child in a foster home with an acquaintance and contacted DHS to report the incident. DHS also discovered the mother had failed to take her medications for several weeks. The mother fled the residence she shared with the father, leaving the child behind.
On May 17, the juvenile court continued placement of the child in the foster home under the care and custody of DHS. Any visitation between the mother and the child was at the discretion of DHS. The juvenile court further ordered the mother must participate in a substance-abuse evaluation, random drug testing, and remain active in all recommended mental-health treatment, including taking all medications as prescribed. The juvenile court found reasonable efforts were being made to prevent or eliminate the need of the removal of the child from the child’s home. The court found these reasonable efforts included substance-abuse and mental-health treatment for the parents.
A review hearing was held in August 2017. The juvenile court continued the prior orders and ordered additional services, including FSRP services, a substance-abuse evaluation, and random drug testing for the mother in an attempt to facilitate the reunification of mother and child.1 The juvenile court again found reasonable efforts were being made. The mother had been hospitalized for mental-health treatment and was discharged twelve different times between February 2017 and February 2018 for failing to comply with rules and expectations regarding treatment.
The juvenile court found the mother had been hospitalized in various mental health facilities for seven of the eleven months since the child had been removed. The court also found the mother evidenced an unwillingness to address her mental health and improvement could not be anticipated for the reasonable future. The court terminated the mother’s parental rights under Iowa Code sections 232.116(1)(g), (h), and (k) (2017). The mother appeals.
We review proceedings terminating parental rights de novo. In re A.M. , 843 N.W.2d 100, 110 (Iowa 2014). "We give weight to the juvenile court’s factual findings, especially when considering the credibility of witnesses, but we are not bound by them." In re A.B. , 815 N.W.2d 764, 773 (Iowa 2012).
The mother does not dispute the statutory grounds for terminating her parental rights and, therefore, we do not address them. See In re P.L. , 778 N.W.2d 33, 40 (Iowa 2010). The mother claims the State failed to make reasonable efforts to facilitate reunification. She faults the care of mental-health professionals and the circumstances surrounding her medical treatment as limiting factors in her ability to communicate with the child. The mother claims the State failed to afford reasonable efforts to ensure adequate opportunities to maintain her parental relationship with the child as she underwent treatment.
For custody of a child to be transferred, a juvenile court must find by clear and convincing evidence, "[T]he child cannot be protected from some harm which would justify the adjudication of the child as a child in need of assistance and an adequate placement is available." Iowa Code § 232.102(6)(a)(2). Once custody of a child is transferred to DHS, Iowa Code section 232.99(3) requires the court to inquire as to the sufficiency of services being provided by DHS and "whether additional services are required to facilitate the safe return of the child to the child’s home." The State must make reasonable efforts to reunify the family as quickly as possible consistent with the best interests of the child. Iowa Code § 232.102(9). In determining whether the State has made reasonable efforts, the court is required to look to the type, duration, and intensity of support provided to facilitate the reunification of the child and family. Iowa Code § 232.102(12)(a)(1).
The State claims the mother failed to preserve error on the reasonable-efforts challenge. A parent must inform the juvenile court if they are not satisfied with the efforts of the State. In re C.H. , 652 N.W.2d 144, 148 (Iowa 2002). If a parent fails to request other services, the issue is waived and may not be challenged at the termination proceeding. Id .
During the CINA case, the juvenile court held multiple review hearings, including: June 29, September 19, and November 21, 2016, and February 20, May 17, and August 28, 2017. The juvenile court followed each hearing with an order reminding the parties failure to identify a deficiency in service or request additional service may waive any challenge to the sufficiency of the services in a future termination proceeding. See Iowa Code § 232.99(3). No evidence in the record shows the mother expressed any dissatisfaction with the case permanency plan or the efforts of DHS at facilitating reunification. The mother’s failure to request additional or alternative services during the two years of CINA and termination proceedings waived any challenges to the sufficiency of the DHS efforts at reunification.
The mother also claims her hospitalization and mental illness kept her from competently assisting counsel and inhibited preparation for the termination proceedings. A party to a civil action who is confined to any "reformatory or state hospital for the mentally ill" must be represented by a guardian ad litem unless defended by legal representation. Iowa R. Civ. P. 1.211 ; accord Garcia v. Wibholm , 461 N.W.2d 166, 169–70 (Iowa 1990). Any judgment entered against an incompetent person, without appointing a guardian ad litem, is voidable if the person was actually represented by an attorney.2 In re Marriage of Payne , 341 N.W.2d 772, 775 (Iowa 1983) ().
The mother was appointed counsel for the termination proceedings as required by Iowa Code section 232.113. Juvenile proceedings are required to conform to fair treatment. In re M.L. , 868 N.W.2d 456, 460 (Iowa Ct. App. 2015).
During the termination hearing, counsel for the mother raised the issue of her competency:
In the colloquy, the court inquired into the mother’s awareness of the hearing as well as her competency. The mother now claims she was unable to assist counsel in preparing for the hearing or actively participate in the hearing because of her mental illness. The mother’s argument is in direct contrast to the court’s inquiry at the termination hearing and counsel’s confirmation she was competent to understand and participate in the proceedings.
Even if we were to find the mother was unable to...
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