In re Interest of M.W.

• Decision Date: 04 March 2016
• Docket Number: No. 15–1256.,15–1256.
• Citation: 876 N.W.2d 212
• Parties: In the Interest of M.W. and Z.W., Minor Children, R.W., Mother, Appellant.
• Court: Iowa Supreme Court

876 N.W.2d 212

In the Interest of M.W. and Z.W., Minor Children, R.W., Mother, Appellant.

No. 15–1256.

Supreme Court of Iowa.

March 4, 2016.

David A. Dawson, Sioux City (until withdrawal), then Theresa Rachel of Deck Law, L.L.P., Sioux City, for appellant.

Thomas J. Miller, Attorney General, Kathrine S. Miller–Todd, Assistant Attorney General, Patrick A. Jennings, County Attorney, and Dewey P. Sloan, Assistant County Attorney, for appellee.

ZAGER

, Justice.

The juvenile court terminated a mother's parental rights to two of her children. The court of appeals affirmed the termination of parental rights to one of the children and reversed as to the other. The State appeals and requests that we affirm the juvenile court's termination of parental rights for both children. After our de novo review of the record, we conclude that the juvenile court order terminating parental rights to M.W. under Iowa Code section 232.116(1)(h ) (2013)

was proper. We therefore affirm the decision of the court of appeals to the extent it confirmed the termination of parental rights to M.W. However, we reverse the decision of the court of appeals as to Z.W. and conclude that termination of parental rights to Z.W. under Iowa Code section 232.116(1)(h ) was also proper and supported by clear and convincing evidence in the record. We affirm the court of appeals on all other grounds.

I. Background Facts and Proceedings.

R.W. is the mother and M.D.W. is the father of M.W. and Z.W. (the children). Both parents' parental rights to the children were terminated in July 2015.¹ M.W. was born in April 2013 and Z.W. was born in March 2012, making them two years old and three years old at the time of the termination hearing.

The family came to the attention of Child Protective Services (CPS) on or around April 29, 2014, after the children's younger sibling L.W. died while under the supervision of their father.² M.D.W. reported that he awoke at noon to find L.W. unresponsive. M.D.W. arrived at Unity Point Hospital in Sioux City with L.W. at approximately 2:20 p.m. He reported that the reason he did not call an ambulance for L.W. was that there was an active arrest warrant for him in Woodbury County. By the time M.D.W. arrived at the hospital with L.W., full rigor mortis had set in. Hospital personnel estimated that the time of death was four hours prior to arriving at the hospital. When L.W. arrived at the hospital, he was wearing filthy clothes that reeked of urine and feces, was unbathed, and had a number of sores around his neck. As described by the juvenile court, the autopsy report noted that L.W.

had a wizened appearance with skin tenting and sunken eyes, ... [and] failure to thrive with all growth parameters below the fifth percentile. The report further noted contusions and abrasions on the 2–month–old infant's hands, further noting the post-mortem chemistry was consistent with severe dehydration. The report indicated the cause of death as malnutrition and dehydration due to neglect, with [the] manner of death being homicide.

Although L.W. was approximately two months old at the time of his death, R.W. reported that he may have only received three baths in his life because she was often too tired after returning home from work to bathe him. She also reported only giving L.W. bottles of sugar water on numerous occasions.

On the same day L.W. was brought to the hospital, law enforcement and CPS officers executed a removal order and removed the children from the home. The children were placed in foster care with nonrelatives. The same day that the children were removed from their parents' care, law enforcement and CPS officers went to the apartment where R.W., M.D.W., and the children had been residing. The investigators described the conditions of the home as deplorable. On May 1, Dr. Jung visited the apartment with law enforcement officers. He reported,

I inspected all rooms of the residence. I inspected the bedroom where the parents slept. I inspected the children's bedding in their bedroom. I inspected the bathroom which was very foul smelling with hundreds of flies and gnats surrounding a substantial pile of very old and putrid smelling soiled diapers.

The children's bedding was caked with soiling and matted dirt, debris, and body fluid. There was a very strong stench coming from the children's bedroom. Scatter[ed] throughout the floor on the carpet of the entire apartment were discarded used food containers and garbage which made it difficult to walk through. The carpet was stained and smelled of rotting feces and decaying vegetables and food products. All surfaces, including chairs, floors, and bedding were in an extremely filthy, putrid, and unhealthy state. The stench was sickening and clearly was not safe to inhabit by anyone.

It would be my medical opinion that this apartment was not in a safe living condition for anyone, but particularly small dependent children who would be at serious medical and health risk by living in this squalor, filth and fly/gnat infested environment. The conditions of this home are beyond what one could appreciate with a photograph. The stench, the flies, the gnats, carpet, bedding, the trash, the rotting dirty diapers from months previous created a garbage dump odor and appearance. The conditions of this apartment as stated previous[ly are] not safe for children to be residing in to maintain a minimum level of health and safety.

Additionally, the landlord had sent R.W. a number of letters about the condition of her apartment. The landlord inspected the apartment in January and February 2014 and observed a strong odor, garbage around the apartment, soiled carpet, and dirty dishes everywhere. He gave R.W. time to clean the apartment and scheduled a re-inspection in March. R.W. refused the landlord's employee entry to the apartment when it came time for the re-inspection. Following Dr. Jung's inspection on May 1, R.W. cleaned her apartment. The landlord reported that R.W. had cleaned the apartment and obtained new furniture as of May 13.

Following their removal, hair stat tests were performed on the children. M.W. tested positive for cannabinoids and carboxy-THC. Z.W. tested positive for cannabinoids, carboxy-THC, and native THC. A test was also performed on the deceased L.W., who tested positive for amphetamines

, methamphetamine, cannabinoids, carboxy-THC, and native THC. R.W. initially admitted that both she and M.D.W. had substance abuse problems. She stated that she only used marijuana and denied the use of any amphetamines. However, she did acknowledge that she was uncertain what drugs she had ingested on a number of occasions because "[M.D.W.] would load the pipes and she would not necessarily know what was being loaded in the pipe." She also admitted that she had given M.D.W. money in the past to buy marijuana to calm his nerves and to buy Adderall so he would be able to stay awake while watching the children. M.D.W. was on probation at the time of the children's removal, and his probation officer collected a urine sample. This urinalysis tested positive for THC. M.D.W. admitted to using Adderall and signed an admission that the last time he used marijuana was on or around April 26. M.D.W. also has a history of domestic abuse assaults. R.W. was the victim of at least two domestic assaults by M.D.W. On at least one occasion, all three children were present in the apartment when M.D.W. assaulted R.W.

M.D.W. was the primary caretaker of the three children while R.W. was at work. However, R.W. acknowledged that she knew M.D.W. was not providing an adequate level of care for the children while she was at work, and she did nothing to remedy the situation. R.W. told CPS that M.D.W. would stay up all night playing video games and sleep during the day instead of taking care of the three children. She said that she knew the children were not being fed properly, were not being bathed, and were being neglected by M.D.W. CPS noted in its investigative report that "[R.W.] was fully aware of the type of care [the children] were receiving from [M.D.W.] and she did nothing to protect her children."

A temporary removal hearing was held on May 8 for M.W. and Z.W. After the hearing, custody of the children remained with the Department of Human Services (DHS) for placement in foster care, subject to visitation at DHS discretion. The juvenile court found that it would be contrary to the welfare of the children for them to be in the custody of their parents. On May 28, CPS finished its investigation into the conditions giving rise to the children's removal. The report confirmed the allegations as to M.W., Z.W., and L.W. for: (1) the denial of critical care for failure to provide adequate shelter, adequate supervision, or adequate health care; and (2) the presence of illegal drugs in the body of a child.

R.W. obtained a substance abuse evaluation. The substance abuse evaluation recommended that she enroll in residential-level care, followed by a half-way house or intensive outpatient treatment. R.W. did not follow this recommendation and instead chose to participate in intensive outpatient treatment. She began treatment on May 13, and the record reveals that her participation remained consistent. Her therapist rated her at a moderate risk for relapse

and recommended that she remain in the intensive outpatient program. R.W. also underwent a psychiatric evaluation on May 28. She was diagnosed with Major Depressive Disorder, Generalized Anxiety Disorder, Posttraumatic Stress Disorder (PTSD), and Dependent Personality Disorder. She was prescribed medications to help with her nightmares and PTSD symptoms, and her evaluator recommended that she attend therapy on a regular basis.

On May 29, the juvenile court held a combined temporary removal and adjudication hearing. In an order filed June 2, the court noted that R.W. had stipulated to the statutory grounds for adjudication but not the factual grounds. The court found that there was clear and...