In re Interest of T.S.

• Decision Date: 25 February 2015
• Docket Number: No. 14–1517.,14–1517.
• Citation: 868 N.W.2d 425
• Parties: In the Interest of T.S. and K.G., Minor Children. L.G., Mother, Appellant. K.G., Father of K.G., Appellant.
• Court: Iowa Court of Appeals

868 N.W.2d 425

In the Interest of T.S. and K.G., Minor Children.

L.G., Mother, Appellant.

K.G., Father of K.G., Appellant.

No. 14–1517.

Court of Appeals of Iowa.

Feb. 25, 2015.

As Amended Oct. 16, 2015.

Jessica Maffitt of Benzoni Law Office, P.L.C., Des Moines, for appellant-mother.

Kevin Hobbs, West Des Moines, for appellant-father.

Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant Attorney General, John P. Sarcone, County Attorney, and Christina Gonzalez, Assistant County Attorney, for appellee.

John Heinke of Kragnes & Associates, P.C., Des Moines, for father of T.S.

Brent Michael Pattison of Drake Legal Clinic, attorney and guardian ad litem for T.S.

Marshall Orsini, Des Moines, attorney and guardian ad litem for K.G.

Considered by MULLINS, P.J., and BOWER and McDONALD, JJ.

Opinion

MULLINS, J.

The mother appeals the termination of her parental rights to two children, K.G. and T.S. The father of K.G. appeals the termination of his parental rights to K.G. The father of T.S. does not appeal termination of his parental rights to T.S.

The mother contends her attorneys for the child-in-need-of-assistance and termination-of-parental-rights proceedings were ineffective. She further contends the expedited termination appeals process creates a per se violation of terminated parents' rights to due process. She also challenges the sufficiency of the evidence to support termination of her parental rights to T.S. under Iowa Code section 232.116(1)(h) (2013) and to K.G. under section 232.116(1)(d) and (e). The father contends there was insufficient evidence to support termination of his parental rights to K.G. under sections 232.116(1)(b) and (e).

With respect to the mother, we find her trial and appellate attorneys were not ineffective. We further find the expedited termination appeal process does not create a per se violation of terminated parents' due process rights. With respect to the statutory grounds, we affirm termination of her parental rights to T.S. under Iowa Code section 232.116(1)(h), and to K.G. under 232.116(1)(e). With respect to the father of K.G., we find the evidence supported termination of his parental rights under section 232.116(1)(e).

I. BACKGROUND FACTS & PROCEEDINGS.

K.G. was born in 2000 to her mother, Leanne, and father, Kirk, in the state of Colorado. Leanne and Kirk divorced when Leanne became pregnant with a child by John. Leanne and John's child, T.S., was born 2012. For several years while all the parents lived in Colorado, Kirk paid Leanne child support and had visitation with K.G. In November 2012, Leanne and John moved to Iowa where John's family resides, bringing K.G. and T.S. with them.

The Department of Human Services (DHS) became involved with the family in October 2013 when John was charged with domestic abuse assault against Leanne. At that time, DHS discovered both Leanne and John used methamphetamine; that Leanne frequently left the children alone with John; and that John used drugs to the point of passing out while he was caring for the children, and Leanne was aware of this. Leanne and John have a long history of domestic violence and of drug use, primarily methamphetamine. They had been together approximately seven years. K.G. had been acting as another parent to T.S., caring for him while the parents used drugs, and K.G. tried to protect T.S. from observing the domestic violence in the home. By temporary emergency order, the juvenile court removed the children from Leanne and John's home and placed them with T.S.'s paternal grandparents.

On November 8, 2013, the juvenile court adjudicated the two children in need of assistance (CINA) under Iowa Code section 232.2(6)(b) (parent has physically abused or neglected the child, or is imminently likely to abuse or neglect the child), (c)(2) (failure of parent to exercise a reasonable degree of care in supervising the child), and (n) (parent's drug or alcohol abuse results in the child not receiving adequate care). Leanne stipulated to the adjudication. The juvenile court ordered Leanne to participate in substance abuse treatment and drug testing.

In late November 2013, DHS reported that Leanne obtained substance abuse and mental health evaluations, was attending therapy with a mental health counselor to address her substance abuse and domestic violence issues, and was attending parenting classes. Leanne was diagnosed with adjustment disorder. She had visitation three times per week, and DHS offered to make the visits semi-supervised instead of fully-supervised. DHS also reported that K.G. was diagnosed with moderate depression and that she had made some suicidal statements. K.G. was attending weekly therapy. T.S. had no major health concerns but had some speech delays and would be evaluated. DHS recommended that in order for reunification to occur, Leanne would need to show commitment to her sobriety, address her mental health in individual therapy, continue parenting classes, attend domestic violence awareness classes, and demonstrate she is able to be a safe and protective parent.

The court entered a dispositional order December 9, 2013, wherein it stated:

The Court finds Mother has made progress but the length of time Mother placed these children at risk justified Mother demonstrating safe choices for a longer period of time before the children are returned.... Placement outside the parental home is necessary because continued placement in or a return to the home would be contrary to the children's welfare due to parent's unresolved domestic violence, substance abuse issues and mental health and lack of supervision issues.

The court ordered Leanne to continue participating in individual therapy and follow recommendations of the therapist regarding substance abuse, mental health, and domestic violence.

In February 2014, Leanne tested positive for methamphetamine. In April, she tested positive again. Following the April 2014 permanency hearing, the court changed the permanency goal to termination. DHS resumed fully-supervised visitations. At the time of the positive tests, Leanne continued to deny using, stating the drug screens were inaccurate. Throughout the case, Leanne changed her story about her past drug use. At the adjudication hearing, she stated she had last used drugs four to six months prior. In a substance abuse evaluation in March 2014, she reported she had not used in two years. In another evaluation done at the beginning of May 2014, she reported she had not used in three years. At yet another evaluation at the end of May, she admitted to a recent relapse and to smoking methamphetamine four times per week. The counselor recommended she receive residential treatment. Leanne reported to the counselor she did not believe she needed residential treatment and would look for outpatient services.

On May 9, 2014, the State filed a petition to terminate the parental rights of Leanne to K.G. and T.S.; Kirk to K.G.; and John to T.S. DHS, the Court-Appointed Special Advocate (CASA), and the guardian ad litem all recommended termination of the three parents' rights. Prior to the termination hearing, DHS reported Leanne sent texts to K.G. asking K.G. to lie to the grandparents and to contact Leanne without DHS authorization. Leanne also asked K.G. to delete the texts after reading them. Leanne reported to DHS that she was taking online domestic violence classes, but also stated she wishes she had not called police the night the children were removed. DHS averred this was a safety concern if the children were returned to Leanne because if another domestic violence incident were to occur, Leanne might not be willing to protect her children by calling police.

In April, John was arrested for a violation of his probation. Although there was a no-contact order in place between John and Leanne stemming from the October 2013 domestic abuse assault charges, Leanne called John in jail and visited him there. John stated that prior to his arrest he had been seeing Leanne regularly and staying at her home in violation of the no-contact order. He also stated they had been using methamphetamine together regularly. During one visitation in Leanne's home, John unexpectedly walked into the apartment while a DHS worker was supervising. At Leanne's request the district court later vacated the no-contact order.

Prior to Leanne and John moving to Iowa in November 2012, Kirk had been paying child support to Leanne for K.G. and exercising visitation each weekend. After moving to Iowa, Kirk continued paying child support but did not see K.G. regularly. He was in contact with her over the phone or by text. He did not inquire into K.G.'s new living environment. She did, however, spend three months in the summer of 2013 with Kirk in Colorado. Although notified of all the CINA and termination proceedings, Kirk has had minimal participation in this case on behalf of K.G. He stated he could not afford to travel to Iowa to do so, could not take time off work, and was caring for his elderly father. He attended the adjudication hearing in November 2013, but did not request appointment of counsel. He attended only one of the two days of the termination hearing, but did not attend any other court proceedings or meetings with service providers. Prior to the termination hearing he requested and obtained appointment of counsel. At no time did he request custody of K.G., participate in any services, inquire into any of the services K.G. was receiving, or ask for a home study for placement of K.G. with him.

The court held the termination hearing on June 6 and 9, 2014. At that time, Leanne had started but had not completed outpatient substance abuse treatment. She admitted to lying about being pregnant in an attempt to get into a residential treatment facility. She continued to see a therapist, but the therapist did not provide substance abuse counseling, only mental health counseling. She had attended some domestic violence classes. She admitted she told John she would...