In re Interest of C.Z.
| Decision Date | 12 March 2021 |
| Docket Number | No. 20-1371,20-1371 |
| Citation | 956 N.W.2d 113 |
| Parties | In the INTEREST OF C.Z., Minor Child. N.C., Father, and State of Iowa, Appellants. |
| Court | Iowa Supreme Court |
Adam Hanson of Law Office of Adam Hanson, Des Moines, for appellant father.
Thomas J. Miller, Attorney General, and Charles K. Phillips, Assistant Attorney General, for appellant State of Iowa.
Erin Mayfield of Youth Law Center, Des Moines, guardian ad litem for minor child.
Christine E. Branstad and Teresa M. Pope of Branstad & Olson Law Office, Des Moines, for intervenor appellees.
Lily E. Dayton, Assistant Polk County Attorney, for the Polk County Attorney's Office, Des Moines.
The Iowa Department of Human Services (DHS) represented by the attorney general and the father appeal the juvenile court order terminating the father's parental rights to his two-year-old daughter. DHS, the attorney general, and the father all favor restoring the father's rights and placing his daughter in his custody under supervision. Termination is supported by the Polk County Attorney, the foster parents, and the child's guardian ad litem (GAL). This unusual alignment of parties presents a threshold issue: whether the county attorney may be heard in this appeal. Normally, the State is represented by the county attorney in juvenile court and by the attorney general on appeal. Here the county attorney is adverse to the State and has no client in this case. But in a 2013 amendment to the statute applicable to terminations, the legislature provided that when the county attorney and State (represented by the attorney general) disagree, "the county attorney may continue to appear in the proceeding and may present the position of the county attorney regarding the appropriate action to be taken in the case." Iowa Code § 232.114(3) (2014) (emphasis added). Today we hold that "the proceeding" includes the appeal from the order terminating parental rights.
On our de novo review, for the reasons explained below, we reverse the order terminating the father's parental rights.
C.Z. was born in November 2018. Three days after her birth, the juvenile court ordered C.Z. to be immediately removed from the custody of her mother due to the mother's homelessness, substance abuse concerns, and failure to demonstrate parenting capability. The court found C.Z. could not be placed with her father at that time due to his history of domestic abuse, substance abuse concerns, and his inability to show appropriate parenting. C.Z.’s mother and father were unmarried but were involved in a prior relationship and the court had terminated their parental rights to their son, M.C., five months before C.Z.’s birth.
On November 30, the court placed temporary legal custody of C.Z. with DHS. On December 18, C.Z. was adjudicated a child in need of assistance (CINA). The father's paternity was established in January 2019. C.Z. was placed with foster parents who later were allowed to intervene in this case.
The father admitted to substance abuse. He was prescribed suboxone strips from Covert Action, a clinic where he received counseling. He sought treatment after his rights to M.C. were terminated because he was struggling with depression and wanted to prevent a relapse. There were discrepancies in what he said about his drug use. He told DHS he had last used marijuana in January 2019; he told Covert Action that he last used in October 2018. He also disclosed to DHS a car accident in September 2018 but said that there were no illegal substances or alcohol found in his system. The police report stated the father admitted to having consumed alcohol the day of the accident and the hospital blood test revealed opiates and benzodiazepines.
He also failed to disclose that he had been diagnosed with alcohol abuse.
In March 2019, the father tested positive for methamphetamines and amphetamines. On May 20, the court confirmed C.Z. was a CINA and ordered the temporary legal custody of C.Z. remain with DHS for foster care. The next day, the court scheduled a termination of parental rights hearing. On October 25, the court terminated the mother's parental rights.
In its October 28 report, DHS noted that the father had reportedly been seen intoxicated downtown, and that while the father denied being intoxicated, he admitted to drinking "on occasion while watching football." DHS noted that the father admitted to missing about five weeks of therapy due to a new job, but that he had resumed therapy in September. The father was asked about ending some visits with C.Z. early to go watch football; the father denied this happened more than once.
On November 6, the court granted the father a six-month extension, prohibited him from going to bars, and ordered C.Z. to remain in DHS custody. The father was "visibly upset" at this hearing, and challenged the court's order to stay away from bars; he argued Grumpy Goat was not a bar, and the court then specifically ordered him not to go to Grumpy Goat. The father later violated this order by going to a bar, Mac Shack, in November 2019 and Grumpy Goat in January 2020. When confronted with violating the court order, he "admitted to being in both locations, d[rinking] two beers, and admitted that it was a ‘stupid mistake.’ "
In late November 2019, the father began having four overnight visits a week. These continued for about thirty days; the father transported C.Z. to and from daycare, handled her medical appointments, and took care of her daily needs. Family, Safety, Risk, and Permanency services (FSRP) noted there were no concerns raised by FSRP, DHS, the daycare, the Court Appointed Special Advocate (CASA), or Early Access during that time. The father continued working at the workplace where he had been employed since August and continued working through the duration of the case. He had stable, appropriate housing in the same apartment complex as his father, who lived in the building next door, supported the father, and "established a relationship with [C.Z.]."
On December 31, the county attorney, on behalf of the State, filed a motion to return C.Z. to her father's custody. At that time, C.Z. had been with the father for a consecutive week. DHS had C.Z. continue to stay at the father's home from December 31 to January 30, 2020; no concerns were raised during this time by Early Access, DHS, or FSRP.
While the relationship between the father and the foster parents initially was supportive, it began to deteriorate in the autumn of 2019. On December 23, the foster parents filed a motion to intervene. On January 15, 2020, the foster parents’ motion to intervene was set for a hearing. An Assistant Polk County Attorney reported that he had seen the father at Grumpy Goat on January 12. A photo from the father's Facebook account was downloaded as an exhibit; it showed alcoholic beverages inside of a refrigerator with the caption "Life is Good." The hearing was reset for January 30. The State, GAL, and father resisted the request to intervene. At the hearing, the foster parents told the court that C.Z. had been with the father for an extended home visit. During the hearing, the court told the parties that C.Z. needed to be returned to foster care. On February 8, the court issued its order granting the foster parents’ motion to intervene. It found that DHS's return of C.Z. to her father's custody violated the court's prior ruling.
On February 7, the father set up a video phone call with the mother who was in jail. He knew the call would be recorded. The father called the judge names and voiced his frustration with the case and his child not being in his care. He told the mother it was "[t]he same judge from the last one." He explained that "everybody's on my side," listing DHS, the county attorney, the GAL, CASA, and Early Access. He said on December 24 "[C.Z.] came home for good," that "she was at my house full time," but after a month, the foster parents filed a motion to intervene. He mentioned the county attorney informing the court that he had seen the father at Grumpy Goat, and was upset that he could be in contempt of court for going. He told the mother:
I swear to God. This – she is not right. This Judge. She's being prejudice. She's like building up shit from last case. I - like she – she's fucked up. Even DHS said like this is messed up. I've never seen this happen and they've ask for like an explanation and they – the Judge like filed motion I don't have to explain nothin. Like she's just being bad. So .... we go to court about this intervening and she knows this in the back her head and she grants access for the foster family to intervene in the case, first of all.
The father failed to tell DHS about this call, and several phone calls he had with the mother between February 8 and 11. The State told the court about this contact during an emergency hearing on February 14. DHS viewed his undisclosed jail phone calls as concerning, but ultimately pointed out that to his credit he told the mother that "she needs to change her life, make different choices, point[ed] out the difference in their lifestyles, and [was] frustrated by her continued addict mentality."
On February 29, DHS reported actions of the foster mother it found concerning, including that she shadowed the father to take photos of him in a bar on two occasions, sent the photos to caseworkers, "attempted to sabotage [the father's] visits," and breached confidentiality.
Because of COVID-19, there were approximately three weeks in April where the father had no visits with C.Z. He declined virtual visitation because of the breakdown in the relationship with the foster parents and his belief that interacting with C.Z. by video would be difficult. DHS denied...
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