In re S.W.

• Decision Date: 27 July 2011
• Docket Number: 11-0710,No. 1-540,1-540
• Parties: IN THE INTEREST OF S.W., Minor Child, S.Y.H., Mother, Appellant, B.L.W., Father, Appellant.
• Court: Iowa Court of Appeals

IN THE INTEREST OF S.W., Minor Child, S.Y.H., Mother, Appellant,

B.L.W., Father, Appellant.

No. 1-540

11-0710

COURT OF APPEALS OF IOWA

Filed July 27, 2011

Appeal from the Iowa District Court for Scott County, John G. Mullen, District Associate Judge.

A mother and father appeal the termination of their parental rights to their child. AFFIRMED.

Cheryl Fullenkamp, Davenport, for appellant-mother.

Angela Fritz Reyes, Davenport, for appellant-father.

Patricia Zamora, Davenport, attorney and guardian ad litem for minor child.

Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant Attorney General, Michael Walton, County Attorney, and Julie Walton, Assistant County Attorney, for appellee.

Considered by Eisenhauer, P.J., and Potterfield and Tabor, JJ.

TABOR, J.

Their history of substance abuse, the exposure to sexual abuse, and their overall poor decision-making led the juvenile court to terminate the parental rights of a mother and a biological father¹ to their five-year-old daughter, S.W. The father and mother—who absconded to Wisconsin for nearly two years rather than have S.W. removed from their custody—now challenge the Iowa court's jurisdiction to terminate their rights. They also challenge the statutory grounds for termination.

Because Iowa was S.W.'s home state when the State filed its petition to terminate parental rights, the juvenile court properly assumed jurisdiction under Iowa Code chapter 598B (2009). Further, we find ample evidence supporting termination in our de novo review of the record.

I. Background Facts and Proceedings.

In September 2005, S.W. was born with cocaine in her system.² In November 2005, the Iowa Department of Human Services (DHS) had trouble locating the family to check on the welfare of the children. The father later acknowledged that they were in their home hiding from the DHS. The DHS placed S.W. and her four half-siblings³ in foster care by ex-parte order on November 15, 2005. The juvenile court adjudicated S.W. as a child in need ofassistance (CINA) on February 10, 2006, as a result of the parents' substance abuse issues and their failure to protect her from an uncle who is a registered sex offender.⁴

The children remained in foster care from November 2005 until April 2007. The DHS returned the children to the parents on April 6, 2007, for a trial home visit. The DHS discovered in July 2007 that both parents tested positive for crack cocaine and refused treatment. Anticipating the DHS would again petition for removal, the parents left the state with the five children in August 2007. Authorities found the four older siblings within three months,⁵ but S.W.'s whereabouts remained unknown until September 2009.

On December 3, 2008, the court dismissed the original petition adjudicating S.W. as a CINA, based on the inability of the DHS to regain custody of the child. The Scott County Attorney's Office charged the parents with felony violation of a custody order and the court issued warrants for their arrest. In the spring of 2009, the parents were arrested and bonded out of jail. After a few months of discussion with the DHS, on September 16, 2009, the father brought S.W. to the Davenport office to show the DHS workers that she was in good health. The child did appear to be well cared for. But the DHS learned from the mother's seventeen-year-old daughter, P.I., that S.W.'s father had sexuallyabused P.I. during the time of the trial home visit in 2007 and while the family was "on the run."

The DHS obtained an ex parte removal order for S.W. on October 14, 2009. The father attended the hearing and testified that he did not know the location of the mother and S.W. He also denied sexually abusing P.I. On February 15, 2010, the parents turned S.W. over to the adoptive mother of her two other children. On April 14, 2010, the juvenile court again adjudicated S.W. as a CINA, citing concerns about the parents' inability to protect her from sexual abuse. At a dispositional hearing in May 2010, the father said he was willing to participate in sex offender treatment, but declined to admit that he sexually abused P.I. for fear of prosecution.

The mother attended regular visitation with S.W. from February 2010 until June 2010. But in June the mother disappeared. When asked at the termination hearing why she left, the mother explained: "I had a lot of things going on with myself and I felt I couldn't do no good for my daughter if I was going through a lot in myself." The mother returned on November 10, 2010.

In a November 29, 2010, review order the juvenile court concluded that the mother "abandoned the child." Also in the November 29 order, the court noted that the father had maintained consistent visitation with S.W. But the father had "refused or failed" to engage in sex offender treatment, declaring "he has no intention of participating." The court concluded that "[n]either parent is making significant effort to address the adjudicatory harm to reunify with the child."

On January 26, 2011, the State filed a petition to terminate parental rights; a jurisdictional affidavit was attached to the State's petition. The juvenile court held a hearing on April 21, 2011, and issued its order terminating parental rights on May 2, 2011. The mother and biological father separately appeal the termination order.

II. Standard of Review.

We give de novo review to questions of subject matter jurisdiction under the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA), enacted as Iowa Code chapter 598B. See In re Guardianship of Deal-Burch, 759 N.W.2d 341, 343 (Iowa Ct. App. 2008).

We also review orders terminating parental rights orders de novo. In re P.L., 778 N.W.2d 33, 40 (Iowa 2010). The juvenile court's findings of fact do not bind our decision, but should be accorded weight, especially in assessing the credibility of witnesses. In re D.W., 791 N.W.2d 703, 706 (Iowa 2010). Our court will uphold an order terminating parental rights if there is clear and convincing evidence of grounds for termination under Iowa Code section 232.116. Id. 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. Discussion.

A. Subject matter and personal jurisdiction

We begin with the issue of the juvenile court's subject matter jurisdiction under the UCCJEA. Both parents argue on appeal that the juvenile court erred in finding it had subject matter jurisdiction over the CINA and termination of parentalrights proceedings because "Iowa was not the children's home state at the time of the initial custody determination and removal in February 2010." The parents claim that S.W. lived in Wisconsin with her father from August 2007 until February 2010, so Iowa was not her "home state" for jurisdictional purposes under Iowa Code chapter 598B.⁶ The parents did not ask the juvenile court to rule on these issues. But we recognize that subject matter jurisdiction may be raised at any time. In re Jorgensen, 627 N.W.2d 550, 554 (Iowa 2001).

The State rebuffs the parents' argument, asserting that the family was under the jurisdiction of the juvenile court when the parents took the children out of Iowa to avoid having them removed by the DHS. The State points out that the December 2008 CINA petition was dismissed only because the DHS could not find S.W. and her parents. The State argues: "For the parents now to argue that their illegal action in absconding to Wisconsin with [S.W.] should now prevent the Iowa courts from having jurisdiction would result in their benefitting from their own wrongdoing."

The State further contends that even if Iowa was not S.W.'s home state, section 598B.201(1)(b) gives jurisdiction to Iowa because Wisconsin courts did not take jurisdiction, the child and parents have significant connections to Iowa, and substantial evidence is available here regarding the child's care and protection. In support of this contention, the State cites In re E.A., 552 N.W.2d 135 (Iowa 1996).

E.A. interpreted a provision of the predecessor to the UCCJEA. E.A., 552 N.W.2d at 138-39. Applying Iowa Code section 598A.3(1)(b) (1995) (a provision of the Uniform Child Custody Jurisdiction Act, which was repealed in 1999 and replaced by chapter 598B), the supreme court decided that the Iowa juvenile court had jurisdiction over a child in need of assistance adjudication despite the fact that Ohio was the home state of the children. Id. Section 598A.3(1)(b) allowed a state to assume jurisdiction, notwithstanding its lack of home state status if

it is in the best interest of the child that a court of this state assume jurisdiction because the child and the child's parents or the child and at least one contestant, have a significant connection with this state, and there is available in this state substantial evidence concerning the child's present or future care, protection, training and personal relationships.

The language of section 598B.201(1) (2009) is similar, but not identical, to its forerunner. Significantly, the "best interest" reference does not appear in the UCCJEA.⁷ The new section provides that an Iowa court has jurisdiction to make a child custody determination if

(a) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this State but a parent or person acting as a parent continues to live in this State;

(b) A court of another state does not have jurisdiction under paragraph "a", or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum . . . and both of the following apply:

(1) The child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence.

(2)

...