In re Interest of E.F.
| Decision Date | 05 July 2018 |
| Docket Number | No. 18-0656,18-0656 |
| Citation | 922 N.W.2d 105 (Table) |
| Parties | IN the INTEREST OF E.F., Minor Child, B.F., Mother, Appellant. |
| Court | Iowa Court of Appeals |
Gina E. Verdoorn of Carr Law Firm P.L.C., Des Moines, for appellant mother.
Thomas J. Miller, Attorney General, and Meredith L. Lamberti, Assistant Attorney General, for appellee State.
Erin E. Mayfield of Youth Law Center, Des Moines, guardian ad litem for minor child.
Considered by Danilson, C.J., and Mullins and McDonald, JJ.
A mother appeals the termination of her parental rights to her child. She contends the State failed to provide her adequate notice of the termination hearing and prove the statutory grounds for termination by clear and convincing evidence. She additionally contends termination is not in the child’s best interests and requests additional time to reunify with her child.
E.F. was born in May 2017 and came to the attention of the Iowa Department of Human Services (DHS) after the child tested positive for amphetamine
at birth. During DHS’s investigation, the mother admitted to methamphetamine use throughout her pregnancy. Upon the child’s discharge from the hospital, he was removed from the mother’s care and placed in the care of his maternal great-grandmother. The mother previously received services as a result of the court’s intervention with two of her older children due to her substance-abuse issues, however she was unsuccessful with addressing those issues. Her parental rights to those children were terminated in March 2015. This child was adjudicated to be a child in need of assistance (CINA) on June 23 and remained in the great-grandmother’s care.
On July 14, the child’s placement was modified to foster care because the great-grandmother was not deemed a suitable long-term placement due to the great-grandmother’s age and the child’s young age, along with reports that, during a prior case, the great-grandmother was dishonest with DHS and allowed unauthorized persons around the children placed in her care. The child was placed and has remained in the same foster-to-adopt home since that time. The child’s father was confirmed through paternity testing, but he repeatedly told DHS he wanted nothing to do with the child or the case and has not participated in any recommended services.
The mother was arrested in June for driving while barred. This, along with testing positive for methamphetamine, resulted in the revocation of her bond on a pending felony drug charge. The mother also obtained a substance-abuse evaluation in June, which resulted in a recommendation for residential treatment. However, she was unable to obtain services at that time due to her criminal matters.
In August, DHS received notification the mother was in an outpatient treatment program until such time that she was accepted into an inpatient program. She started an inpatient program on August 23 but left after one day. In September, the mother was on a waiting list for another inpatient program, which recommended she attend outpatient services until she was able to start, but the mother did not do so. The mother was to begin the inpatient program on October 2, but the mother failed to show up on that day. She was allowed to come in four days later to begin the program. Three weeks later, while meeting with DHS, the mother reportedly asked, "If I am not to get [the child] back, why am I here?" The mother was accepted into recovery court on December 12 but was unsuccessfully discharged on January 22, 2018, because she did not engage or attend and did not maintain contact with the court team.1
The court held a contested permanency hearing on November 21, 2017, during which the mother testified she had not used methamphetamine for forty-six days, but prior to that time, she was using it on a daily basis. She requested an extension to allow more time for progress. Despite this period of sobriety, the court denied the request for an extension and found the record was insufficient to demonstrate a reasonable likelihood the mother would be able to regain custody within the next six months due to her lack of progress in this case as well as in her previous cases. In light of the mother’s history of drug use, other treatment attempts, and lack of insight into her addiction, the court modified the primary permanency goal of reunification to termination of parental rights. The court allowed visitation to continue and the court encouraged the mother to remain in her treatment program to address her substance-abuse issues since no final determination had been made at that time. During the hearing, the court scheduled a termination pretrial conference for January 10, 2018, and a termination hearing for January 23.
On November 24, 2017, the mother did not return to the inpatient program after receiving a pass for an off-grounds meeting. She returned the following day and the program placed her on a behavioral management plan in which she would be immediately discharged from the program if she left again. Though the mother claimed she did not relapse
, a urinalysis administered after she returned was positive for methamphetamine. On December 21, the mother left the program again and did not return. The mother was discharged from the program the following day without having successfully completed the program. DHS has not received any information about the mother reengaging in any services since leaving the program.
Before attending the inpatient treatment program, the mother’s visits with the child were inconsistent. While in the program, she did visit with the child four times per week, during which DHS reported she was attentive. The mother progressed to semi-supervised visits for a short time while she was in treatment, but otherwise her visits were supervised. The mother has not visited with the child since leaving the treatment program in December.
On December 20, the State petitioned the court to terminate the parental rights of the mother and father. On January 16, 2018, the State filed a motion to dispense with service of the petition on the mother, contending it had conducted a reasonably diligent search for her and, despite its efforts, it was unable to locate her. It provided an affidavit of diligent search by its investigator. The court issued an order pursuant to Iowa Code section 232.112(1) (2017) dispensing with notice to the mother.
On January 23, 2018, the mother and father both failed to appear for the termination hearing. At the hearing, the mother’s counsel challenged the sufficiency of notice to her client and asked the court for additional time to allow the State to serve the mother by certified mail. The court denied the request. The court only heard the testimony of the DHS worker assigned to the case. Neither the mother’s attorney nor the guardian ad litem (GAL) offered any independent evidence. The GAL argued in support of termination. On March 31, the juvenile court terminated both parents’ parental rights to the child. Only the mother appeals.
Appellate review of termination-of-parental-rights proceedings is de novo. In re A.S. , 906 N.W.2d 467, 472 (Iowa 2018). "We are not bound by the juvenile court’s findings of fact, but we do give them weight, especially in assessing the credibility of witnesses." Id. (quoting In re D.W. , 791 N.W.2d 703, 706 (Iowa 2010) ). Our primary concern is the child’s best interests. In re J.E ., 723 N.W.2d 793, 798 (Iowa 2006).
The mother first claims she did not receive proper notice, asserting the State failed to provide notice as required under Iowa Code section 232.112, and the court therefore erred in declining to continue the termination hearing to allow the State to effectuate proper notice.2
On November 21, 2017, the court conducted a permanency hearing. The mother was personally present along with her counsel at that hearing. During that hearing the January 10 termination pretrial conference and January 23 termination hearing were scheduled. On December 20, the State filed its petition to terminate the parental rights of the mother and father. One week prior to the termination hearing, the State filed a motion to dispense with service, pursuant to section 232.112(1). The State provided an affidavit of diligent search from the investigator, who attested to the attempts she made to effectuate service upon the mother. The investigator identified she had searched national and local databases, made phone calls, left messages, and went to the last known locations of the mother and left her business card. The investigator spoke with the mother on several occasions3 and made arrangements with her on two different occasions to deliver the notice in person.4 On both occasions, the mother did not appear. After the second attempt to meet in person, the mother did not respond to any further phone calls or text messages.5 The mother’s attorney was unwilling to accept service of the paperwork on the mother’s behalf.
The court granted the State’s motion to dispense with service, finding the State had conducted a reasonably diligent search for the mother but her whereabouts could not be ascertained. The mother did not appear at the termination hearing. The mother’s attorney asked for a continuance, arguing that although the court had already granted a motion to dispense with service, the State had not attempted to serve the mother through certified mail and asked for a continuance to allow for the attempt to be made at the address where the mother acknowledged finding the investigator’s card. However, the mother’s attorney had no knowledge of the mother’s whereabouts. The court denied the request and proceeded with the hearing.
Section 232.112 provides:
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