In re Interest of A.B.
| Citation | 956 N.W.2d 162 |
| Decision Date | 12 March 2021 |
| Docket Number | No. 20-1032,20-1032 |
| Parties | INTEREST OF A.B. and I.B., Minor Children, Y.B., Mother, Appellant. |
| Court | United States State Supreme Court of Iowa |
William P. Baresel of Prichard Law Office, P.C., Charles City, for appellant.
Thomas J. Miller, Attorney General, Ellen Ransey-Kacena, Assistant Attorney General, and Mark L. Walk, County Attorney, Osage, for appellee.
A mother challenges an order terminating her parental rights to two children, aged two and four. The children have been out of her care since October 2018. The termination petition was filed in November 2019, and the order terminating parental rights was entered in July 2020. Although the court of appeals affirmed the juvenile court's order, a dissent concluded that the COVID-19 pandemic had thwarted the mother's efforts to demonstrate that the children could be safely returned to her. We took this case on further review to consider whether this case was appropriately handled in light of the pandemic.
We conclude that it was. On our de novo review, we agree with the juvenile court that the mother had made only limited progress. The supervised visits that occurred both before and during the pandemic showed that the mother could not safely parent the children. Also, the juvenile court acted within its discretion in granting several postponements of the termination hearing but ultimately concluding that it needed to go forward telephonically, notwithstanding the mother's objections. Accordingly, we affirm the order of the juvenile court and the decision of the court of appeals.
A.B. and I.B., aged two and four respectively at the time of the termination hearing, are the sons of Mother and Father, who are married to each other. In May 2018, when A.B. was a newborn infant, A.B. and I.B. were adjudicated children in need of assistance. Some of the concerns at that time were Father's domestic violence against Mother, Father's abuse of alcohol, and Mother's inability to supervise the children when they were with her. Mother moved to Mason City and the children remained with Father in Osage. In July 2018, Mother attempted suicide through an overdose of pain medications.
In October 2018, law enforcement came to Father's home in Osage. Mother had been there, contrary to the court order in place. When Father dragged her out of the house, she threw a shovel through a window. The juvenile court concluded that both parents were violating the court order and could not be trusted to have the children with them. A.B. and I.B. were removed from Father's home and turned over to the custody of the department of human services (DHS) for placement with their adult cousin in Iowa Falls. The home was stable and met the children's needs. Father provided some financial support for the children.
At times in 2019, both Father and Mother appeared to be doing better. They went through couples counseling. Father underwent substance abuse treatment for alcohol. However, an attempted reconciliation was unsuccessful.
Meanwhile, Mother did not work or seek work, relying on support from her family out of state in addition to governmental benefits. Throughout the case, Mother did not have a driver's license or access to personal transportation. Mother complained of pain for which there was no significant physical diagnosis. She talked of returning to California for medical treatment, criticizing the adequacy of the care she was getting, although she was receiving care from the Mayo Clinic. Mother failed to attend numerous therapy sessions and declined to take her mental health medications. Mother's supervised visits with the children were reduced to one per week because she was not attending them consistently. The juvenile court noted in May 2019 that Mother "is entirely dependent on others to meet her needs."
In October, Father and Mother separated again following verbal conflict. Father acknowledged being verbally abusive and resuming the use of alcohol "as a coping tool." Mother continued to display deficiencies in her parenting skills at the supervised visits. At a November review hearing, consistent with DHS's recommendation and after noting the services provided over the last year and a half, the juvenile court directed the county attorney to file a petition for termination of parental rights.
The petition for termination of the parental rights of Father and Mother was filed on November 22. A hearing was scheduled for February 6, 2020.
In the interim, Father and Mother announced their plans to get a divorce. Father remained employed full-time and worked on remodeling his house in the hope that the children would be returned to his care. Both parents continued therapy; they now had separate in-person supervised visits with A.B. and I.B. The family safety, risk, and permanency services (FSRP) provider felt that Father's visits went well but that Mother continued to need work on parenting. Mother would fail to change A.B.’s diapers, would leave one child behind while taking the other to a public bathroom, and had difficulty redirecting or gaining control over the children. Mother leased a one-bedroom apartment and signed up for vocational rehabilitation services. Nonetheless, in a January 28, 2020 report to the court, DHS recommended termination of both parents’ rights.
On February 6, the juvenile court decided to continue the termination hearing for one month to March 5. Father had waited until the last minute to request counsel and, because of his income, did not qualify for court-appointed counsel. The continuance was needed to give Father time to retain counsel and have his counsel present.
In-person supervised visits continued. Mother continued to have problems with basic safety issues such as allowing I.B. to follow her out into the street, permitting A.B. to put a pepper packet in his mouth, and allowing the children to get onto tables and desks. Mother would be on the phone a lot during visits and had trouble controlling the children and remembering to change A.B.’s diapers. A February 10 FSRP report concluded that Father managed the boys well but Mother "struggled to provide supervision that would ensure even their most basic needs of safety without ... supervisors intervening."
Additionally, on February 19, the placement of the children was changed from relative care to foster care, based on the relatives having become licensed foster parents in order to adopt the children. At the request of Father's recently retained counsel, who needed more time to prepare, the termination hearing was continued from March 5 to April 2.
Despite the outbreak of the COVID-19 pandemic, in-person supervised visits continued in March. Mother again had difficulty managing the children during the visits. A recurring issue was her inability to get A.B. and I.B. into a car safely. Meanwhile, Father progressed to unsupervised overnight weekend visits with unannounced drop-ins. Father's weekend time went well.
On March 30, DHS partially changed its recommendation. It proposed that Father be given an additional three months to continue to make progress, while it reiterated that Mother's parental rights should be terminated. Mother moved to continue the April 2 hearing. It was rescheduled to May 28 as a telephonic hearing. In the order granting the continuance, the court indicated that DHS could gradually increase Father's unsupervised time with A.B. and I.B.
Because of COVID-19, Mother's visits from April 11 to May 4 with the children were by video. Father isolated as much as possible and was able to keep having the children overnight for in-person visits.
Prior to the May 28 hearing, Mother filed a motion for an interpreter.1 The juvenile court denied the motion, expressing concern about the delays in the case and noting that "during the course of the Court's more than two years of involvement with this family, the Court has never previously been informed that Mother's ability to understand English was an issue." Mother then moved for reconsideration of the order denying an interpreter and for an in-person hearing, explaining that she was "able to understand English with the context she receives from ... facial expressions and movements when she is in the court room."
The juvenile court held a telephonic hearing on May 28. At the conclusion, the court decided to reschedule the termination hearing for an in-person hearing on July 23, anticipating that COVID-related restrictions on in-person hearings would be lifted by then. The court reasoned that "fundamental fairness to [Mother] requires additional delay" until July, although "[t]his is unfortunate for the children since it delays permanency for them."
The record is incomplete as to how visits proceeded in late May and early June. On June 11, the FSRP provider did a home check. There was concern expressed about Father, A.B., and I.B. all having to share a bedroom due to the upstairs needing work. Father explained he was hesitant to make improvements when he was behind on payments and the bank was threatening foreclosure. Father agreed to prepare the upstairs bedroom for the boys.
On June 19, Mother had an in-person visit with A.B. and I.B. that did not go very well. Mother locked herself out of the apartment as the children were arriving. She then allowed A.B. to play with small beads and put them in his mouth. In a June 30 report, the FSRP worker continued to recommend supervised visitation only for Mother, indicating that she "continues to struggle with understanding the needs of [A.B.] and [I.B.] regarding supervision and development." An FSRP report questioned the suitability...
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