In re Interest of A.B.
| Decision Date | 02 April 2021 |
| Docket Number | No. 20-1266,20-1266 |
| Citation | 957 N.W.2d 280 |
| Parties | In the INTEREST OF A.B., A.C., and A.C., Minor Children, T.D., Mother, and S.W., Father, Appellants. |
| Court | Iowa Supreme Court |
Nicholas A. Bailey of Bailey Law Firm, P.L.L.C., Altoona, for appellant mother.
Karen A. Taylor of Taylor Law Offices, P.C., Des Moines, for appellant father of A.C.
Thomas J. Miller, Attorney General, Ellen Ramsey-Kacena, Assistant Attorney General, and Kevin Brownell, Assistant County Attorney, for appellee.
Kimberly A. Graham of Graham Law Collaborative, Indianola, attorney and guardian ad litem for minor children.
This appeal involves the termination of parental rights of a mother to her three children and the termination of parental rights of the father of one of the children. Mom timely appealed. Dad of one of the children filed a timely notice of appeal but filed his petition on appeal two days late. He asks us to grant him a delayed appeal and excuse the untimeliness of his petition. As discussed below, we conclude we should recognize delayed appeals in termination-of-parental-rights cases in certain limited circumstances and grant the father's application for delayed appeal. We therefore consider whether the termination of parental rights was proper as to both Mom and Dad.
At the outset, we note that although the guardian ad litem (GAL) originally supported termination of parental rights, following the termination hearing she changed her recommendation. On appeal, she urges us to carefully scrutinize the record of this case and reverse the judgment of the juvenile court. Upon our de novo review of the record, we reverse termination as to Mom but not as to Dad.
This case involves three children, all of whom have different biological fathers and the same biological mother. We refer to the mother as "Mom" throughout the case. From oldest to youngest, the children are A.B., born in December 2012; A.C.1, born in April 2017; and A.C.2, born in November 2018. A.B.’s father had minimal involvement in the case and did not appeal. A.C.2's father has also been minimally involved and also did not appeal. He is an important figure in the background of the case since before A.C.2 was born, and since he has the same initials as two of the children, we will refer to him by his first name, Akoya. Dad is the father of A.C.1, has been involved in the case, and appealed termination of his rights. We will refer to him as "Dad." Notably, Mom and Dad also share another daughter, A.W., who was born during the pendency of the present proceedings and is the subject of other proceedings not here involved.
A. Origins of DHS Involvement. Mom was brought to the attention of the department of human services (DHS) on September 13, 2018. At the time, Mom was seven months pregnant with A.C.2, Akoya's child. Around 12:30 a.m., Mom parked at a Quik Trip and walked to Budget Inn, where she "banged" on the door to Akoya and his then-girlfriend's hotel room. The girlfriend called the police because Mom was violating a no-contact order the girlfriend had against Mom. Mom explained her presence as an attempt to get money from Akoya and admitted one-year-old A.C.1 was in her car nearby.
The police discovered A.C.1 alone in the car and removed her from her mother's care. Based on the incident, the police arrested Mom and charged her with violation of a no-contact order, driving while barred, and neglect of a dependent person.
They contacted DHS personnel, who took A.C.1 to a nearby hospital. Medical personnel noted A.C.1 was unwashed, her clothes were dirty, and her diaper was filled with urine. Mom was taken to jail and remained there until November 15. The court entered a no-contact order between Mom and A.C.1, which Mom did not contest.
DHS investigated the case and discovered A.B., A.C.1's older sibling, was already staying at the maternal grandmother's house. DHS placed A.C.1 and A.B. in the maternal grandmother's custody and filed a child in need of assistance (CINA) petition for each child. DHS issued a founded report of abuse against Mom based on failure to supervise, and both children were adjudicated CINA.
Mom pled guilty to child endangerment, acknowledging she had placed A.C.1 in great danger. The court dismissed the no-contact order between A.C.1 and Mom and gave Mom a suspended sentence and probation. While in jail, Mom was diagnosed with depression. She also acknowledged her relationship with Akoya was "very unhealthy." Less than a month after Mom's release from jail, A.C.2 was born. DHS removed A.C.2 from Mom's care and placed him with his maternal grandmother, who had custody of the older two children.
On December 24, Mom's brother got into a physical altercation with their sister at the maternal grandmother's house that ended only when their sister picked up a knife. All three of Mom's children were in the home at the time of the altercation, and at least A.B. witnessed the violence. As a result, DHS removed the children from the maternal grandmother's care and placed the children into shelter care. A.C.2 was adjudicated CINA on January 8, 2019. Around the same time, Mom moved into a domestic violence shelter. The State placed A.C.2 with Mom.
B. History Following Removal from the Maternal Grandmother. DHS began supervised visitation for Mom with the children in January 2019. At the request of DHS, Mom also began therapy at Children and Families of Iowa. When visitation first commenced, A.B. was resistant. He complained that he did not want to see his mother and would physically act out. However, each time A.B. acted out, workers noted Mom handled his behavior well by giving him space and winning him over so that by the end of the visit he did not want to leave Mom.
In February, DHS approved semisupervised visits and overnight visits between Mom and A.B. and A.C.1 at the shelter. Case notes from the time indicate concerns over Mom's homelessness, her time in jail, her allowing unsafe people to be around her children, and her mental health. Yet they also discussed her consistent visits with the children, during which she interacted appropriately and engaged the children in age-appropriate activities. On February 19, the children were returned to Mom at the shelter.
Mom got her own apartment in early April, and DHS removed the requirement that she reside at the shelter to retain custody. However, Mom got in two altercations with Akoya's girlfriend, one on March 22 and the second on April 29, after which she was again arrested. DHS petitioned to remove the children from her care on May 1.
C. Placement of the Children in Foster Care. A.B. was placed with his paternal grandmother while A.C.1 and A.C.2 were placed in separate foster care placements, one in Grimes and the other in Ankeny. This meant there was a significant distance between the placements.
Mom started dating Dad again in March, and he attended some visits with Mom. Notes from visits during the May to June time period document positive family interactions, including strong bonds between Mom and her children. A.B.’s resistance to visits did not continue beyond the first couple of months.
At the beginning of its involvement, DHS recommended Mom engage in counseling services to address her mental health as well as her relationship and domestic violence concerns. Mom began sessions with a mental health counselor in January 2019 and consistently and substantively engaged with her counselor throughout the case. In an accountability letter Mom completed with her therapist in July 2019, she acknowledged her relationship with Akoya was not healthy. She also worked with her therapist on maintaining healthy relationships when she began her relationship with Dad.
Mom contends DHS ceased making reasonable efforts toward reunification during the summer and fall of 2019. She compiled a list of missed visits starting in July. For the most part, Mom's calendar aligns with DHS's reports, though there is some disagreement on specific dates. However, discrepancies become more significant in September and October. These included cancelled visitation and additional services DHS failed to provide.
On August 16, DHS requested drug tests from both Dad and Mom. Dad tested positive for marijuana, amphetamines, and cocaine. Mom did not complete the test until August 19, allegedly because she could not get a ride. Mom tested positive only for marijuana and at a low level near the test's cutoff value. Based on this drug test and an assumption Mom would have tested positive for cocaine on the 16th, DHS returned to fully supervised visits starting August 19.
Following her positive drug screen in August 2019, DHS requested Mom complete a substance abuse evaluation and participate in substance abuse counseling. Mom completed the evaluation and was initially screened to receive early intervention substance abuse services. She regularly participated in substance abuse counseling, including frequent random and observed drug screens. After Mom tested positive for THC in October, her counselor modified her treatment level to extended outpatient services in November. Mom submitted consistently negative drug screens thereafter, with one exception in February 2020, when she tested positive for cocaine. She engaged in services with her substance abuse counselor throughout the case.
In November, Mom moved for a reasonable efforts hearing. She cited frequently cancelled visits, lack of sibling visits and related transportation issues, and failure to move forward with less restrictive visits as reasons DHS was not making reasonable efforts.
D. December Incident. On December 3, 2019, Dad and Mom got into an altercation that led to each being arrested. The...
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