In re A.M., 3-1031 / 13-1336

CourtCourt of Appeals of Iowa
Writing for the CourtMcDONALD
PartiesIN THE INTEREST OF A.M., Minor Child, A.M., Father, Appellant, J.O., Mother, Appellant.
Docket NumberNo. 3-1031 / 13-1336,3-1031 / 13-1336
Decision Date05 December 2013

IN THE INTEREST OF A.M., Minor Child,
A.M., Father, Appellant,
J.O., Mother, Appellant.

No. 3-1031 / 13-1336

COURT OF APPEALS OF IOWA

Filed: December 5, 2013


Appeal from the Iowa District Court for Linn County, Susan Flaherty, Associate Juvenile Judge.

A father and mother appeal separately from the order terminating their parental rights. REVERSED AND REMANDED.

Mark D. Fisher of Nidey, Erdahl, Tindal & Fisher, P.L.C., Cedar Rapids, for appellant father.

W. Eric Nelson of Public Defender's Office, Cedar Rapids, for appellant mother.

Thomas J. Miller, Attorney General, Janet Hoffman, Assistant Attorney General, Jerry Vander Sanden, County Attorney, and Lance Heeren, Assistant County Attorney, for appellee State.

Jessica Weibrand, Cedar Rapids, for intervenors.

Cory Goldensoph, Cedar Rapids, for minor child.

Considered by Vogel, P.J., and Mullins and McDonald, JJ.

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McDONALD, J.

Jessica and Allen appeal a juvenile court order terminating their parental rights with A.M. They contend that the State failed to establish by clear and convincing evidence grounds for termination of their parental rights. Even if the State proved such grounds, they argue, it is not in the best interest of the child to terminate the rights between A.M. and Jessica and Allen. We conclude the State failed to establish by clear and convincing evidence grounds for termination of the parents' rights.

I.

A.M. was born on February 22, 2012, to Jessica and Allen. The hospital staff was concerned about Jessica's ability to feed A.M. consistently. The hospital staff was also concerned about Jessica's mental health because they found Jessica crying in her hospital room. The staff also had concerns regarding Allen's ability to care for an infant because of Allen's medical condition— Tourette's syndrome. The Iowa Department of Human Services (DHS) was made aware of these concerns, and A.M. was removed from Jessica and Allen's custody on February 24, 2012. At a subsequent hearing to review the order of temporary removal, Jessica and Allen stipulated that A.M. remain in the custody of DHS with the parents to have visitation and receive services.

This is not the first instance that Jessica came to the attention of DHS. Jessica has two other children, S.O., and A.L., from prior relationships, both of whom were adjudicated in need of assistance. Ultimately, A.L. was placed in the custody of his father, and S.O. was placed into foster care with Jessica's mother, Sandy.

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On April 4, 2012, Jessica stipulated that A.M. be adjudicated a child in need of assistance. Allen did not stipulate to the same. Following an evidentiary hearing, on April 26, 2012, the court adjudicated A.M. a child in need of assistance with respect to Allen. A.M. was placed in the custody of Sandy, the maternal grandmother. The court held regular review hearings following the adjudication.

On December 28, 2012, the State filed petitions to terminate Jessica's and Allen's parental rights. The State also sought the termination of Jessica's parental rights with respect to S.O. The court held a termination hearing on March 6, 2013. At the time of the termination hearing, Jessica consented to the termination of her rights to S.O. so that she could focus her efforts on parenting A.M. jointly with Allen. At the hearing, the court heard testimony from the family's service providers and from Jessica, Allen, and Sandy.

On August 13, 2013, the court entered its order terminating the rights between Jessica and Allen and A.M. The court found that parental rights should be terminated pursuant to Iowa Code section 232.116(1)(h) (2011).

II.

We review de novo proceedings terminating parental rights. See In re H.S., 805 N.W.2d 737, 745 (Iowa 2011). We examine both the facts and law, and we adjudicate anew those issues properly preserved and presented. See In re L.G., 532 N.W.2d 478, 480-81 (Iowa Ct. App. 1995). We give weight to the findings of the juvenile court, especially concerning the credibility of witnesses, but we are not bound by them. See id. at 481. While giving weight to the findings of the juvenile court, our statutory obligation to review termination

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proceedings de novo means our review is not a rubber stamp of what has come before. We will thus uphold an order terminating parental rights only if there is clear and convincing evidence of grounds for termination. See In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). Evidence is "clear and convincing" when there are no "serious or substantial doubts as to the correctness or conclusions of law drawn from the evidence." Id.

III.

"[T]he relationship between parent and child is constitutionally protected." Quilloin v. Walcott, 434 U.S. 246, 255 (1978). "[T]he custody, care, and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder." Id. (quoting Prince v. Massachusetts, 321 U.S. 158, 166 (1944)). Due process would be violated if the State "attempt[ed] to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children's best interest." Id.

Termination of parental rights under chapter 232 follows a three-step analysis. See In re P.L., 778 N.W.2d 33, 39 (Iowa 2010). First, the court must determine if a ground for termination under section 232.116(1) has been established. See id. Second, if a ground for termination is established, the court must apply the framework set out in section 232.116(2) to decide if the proceeding with termination is in the best interest of the child. See id. Third, if the statutory best-interest framework supports termination of parental rights, the

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court must consider if any statutory exceptions set forth in section 232.116(3) should serve to preclude termination of parental rights. See id.

The court terminated Jessica's and Allen's parental rights pursuant to Iowa Code section 232.116(1)(h). As relevant here, to establish a ground for termination, the State must prove by clear and convincing evidence that the child "cannot be returned to the custody of the child's parents as provided in section 232.102 at the present time." Iowa Code § 232.116(1)(h)(4); In re Chad, 318 N.W.2d 213, 218 (Iowa 1982). A child cannot be returned to the custody of the child's parents under section 232.102 if by doing so the child would be exposed to any harm amounting to a new child in need of assistance adjudication or without remaining a child in need of assistance. See In re R.R.K., 544 N.W.2d 274, 277 (Iowa Ct. App. 1995); see also In re M.M., 483 N.W.2d 812, 814 (Iowa 1992). "The threat of probable harm will justify termination, and the perceived harm need not be the one that supported the child's initial removal from the home." M.M., 483 N.W.2d at 814; see In re C.M.T., 433 N.W.2d 55, 56 (Iowa Ct. App. 1988). After reviewing the record, we conclude that there is not clear and convincing evidence that returning A.M. to Jessica and Allen exposes A.M. to statutorily proscribed harm.

We begin with what is not at issue. There is no concern here regarding physical or emotional abuse of the child. There is no concern here regarding parental substance use or abuse. There is no concern here regarding domestic violence or domestic abuse. There is no concern here regarding parental criminal behavior. There is no concern here regarding neglect. Indeed, there

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does not even appear to be any particular concern regarding any probable or non-speculative harm to A.M.

What is at issue is the State's concern that Jessica and Allen's mental health history and low mental functioning will preclude them from providing proper care and supervision to A.M. "[L]ower mental functioning alone is not sufficient grounds for termination." In re D.W., 791 N.W.2d 703, 708 (Iowa 2010). It can be a contributing factor in a person's inability to perform the duties of parenthood, however. While we do not doubt the sincerity of the family's service providers' concern for A.M., the record reflects that the termination recommendation here is evidenced by generalized conclusions resting only on several trivial incidents not constituting statutory grounds for termination.

There is no evidence Jessica or Allen's mental health conditions or intellectual limitations create the type of statutory harm that would justify termination of parental rights. Jessica is twenty-five, and Allen is twenty-two. Jessica has been diagnosed with depression. She has medication prescribed for the condition. Allen has Tourette's syndrome. Allen's condition causes some hand shaking, leg kicking, and stuttering. Allen testified that the symptoms do not interfere with his ability to work or to care for A.M. There was no evidence to the contrary. Testing performed during the course of these proceedings established that Jessica has borderline adult intellectual functioning. While the State refers to Allen as low functioning, the evidence showed that Allen tested in the lower range of average functioning. He is a high school graduate, and he has maintained employment.

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The evidence also showed that Jessica and Allen have created stability for A.M. At the time of removal Jessica and...

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