In the Interest of B.B. and a.B. Minor Children
| Decision Date | 27 September 2000 |
| Docket Number | 00-0120 |
| Parties | NOTICE! No decision has been made on publication of this opinion. The opinion is subject to modification or correction by the court and is not final until the time for rehearing or further review has passed. An unpublished opinion of the court of appeals MAY NOT BE CITED by a court or by a party in any other action. The official published opinions of the Iowa Court of Appeals are those published in the North Western Reporter published by West Group. IN THE INTEREST OF B.B. and A.B. MINOR CHILDREN L.H., MOTHER, Appellant./ 00-0120 IN THE COURT OF APPEALS OF IOWA Filed |
| Court | Iowa Court of Appeals |
Appeal from the Iowa Juvenile Court for Sioux County, Brian L. Michaelson, judge.
Mother appeals the termination of her parental rights to her daughters.
AFFIRMED.
James H. Pickner, Hawarden, for appellant.
Thomas J. Miller, Attorney General, Janet L. Hoffman, Assistant Attorney General, and Mark Schouten, County Attorney for appellee-State
Patricia Vogel, Orange City, guardian ad litem for the minor children.
Considered by Vogel, P.J., and Hecht, J., and Honsell, S.J.*
Senior judge assigned by order pursuant to Iowa Code Section 602.9206 (1999).
L.H. was arrested and incarcerated on September 30, 1997 concerning a controlled substance charge. Following her arrest and incarceration, L.H. voluntarily placed her children, B.B. who was born on April 5, 1990, and A.B. who was born on May 24, 1996, in foster care.
On November 14, 1997 a CINA petition was filed. The premise for filing the petition was Iowa code section 232.6(n), which states: "Child in need of assistance" means an unmarried child whose parent's or guardian's mental capacity or condition, imprisonment, or drug or alcohol abuse results in the child not receiving adequate care. Because she was still incarcerated L.H. was not present at the adjudicatory hearing held on December 8, 1997, but was represented by court appointed counsel at the hearing. L.H's attorney on her behalf, together with all the other interested parties stipulated that B.B. and A.B were children in need of assistance as contemplated by Iowa code section 232.6(n). The most significant fact giving rise to the resulting adjudication was L.H.'s incarceration. All parties agreed the children remain in foster care pending the disposition hearing. The adjudication order also provided so long as L.H. remained in the county jail there would be no parent-child visitation, however, there could be continued contact by letter, and as soon as she was released from jail supervised visitations were to commence.
Prior to the disposition hearing on March 30, 1998 L.H. pled guilty to a class D felony crime involving a controlled substance. She received a five-year suspended sentence and was placed on probation. One of the terms of probation was that she successfully complete inpatient treatment and a program provided at a halfway house. In the disposition order the court stated:
"The Court, while accepting the terms and conditions of the proposed case plan, did personally address [L.H.] and advised her that in the event she failed to comply with the terms of the case plan, that the Court would be directing the State of Iowa to initiate termination of parental rights proceedings."
The court in its factual determinations in part found L.H. "did not have a stable life as she was growing up, and this has continued into her own adult life with her own family," the children have thrived in their foster care home, and L.H.'s first face-to-face visitation had taken place on March 8, 1998. The court ordered the parties to comply with the terms of the case permanency plan, the children remain in foster care, and L.H. comply with the recommendations set forth in her psychological evaluation.
By the time of the dispositional review hearing on September 28, 1998, L.H. had completed chemical dependency treatment, parenting classes, domestic abuse education classes and successfully graduated from the halfway house program. Prior to the dispositional review hearing arrangements had been made for L.H. to have extended visitations with the children. The court subsequently entered an order indicating the case plan contemplated the return of the children to L.H. in January of 1999. Foster home placement was continued until the next hearing scheduled for January 18, 1999.
The January 18 hearing was continued to March 1, 1999, because L.H.'s attorney was in trial at the time of the scheduled hearing. Commencing in November of 1998, L.H. had overnight visitations with the children. The visitations became every other weekend visits by the children. While being described as active and bright, the children do act out and are in need of supervision, structure and guidance. B.B. has received counseling. The plan to place the children with L.H. on a full-time basis during January was put on hold when B.B.'s school counselor and B.B.'s therapist indicated B.B. was expressing fear of the placement. After the March 1, 1999 hearing the court continued the foster home placement indicating the placement might take place at the end of the school year. The court further ordered L.H. have unsupervised visitations with the children every weekend until the end of the school year. The next hearing was scheduled for June 21, 1999.
On April 26, 1999 a hearing was held concerning a previously filed motion to modify the then existing court orders. L.H. was present at the hearing with counsel. The evidence reflected that on April 13, 1999 after her probation officer requested a urine sample, L.H. told her substance abuse counselor she had snorted one line of methamphetamine while at work. Additionally L.H. was supposed to be attending group substance abuse counseling sessions on a weekly basis, and since August of 1998, she had attended only six sessions. During the March 1, 1999 hearing, L.H. testified she was fulfilling her probationary requirements, when in fact she had pled guilty during December of 1998 to two simple misdemeanor theft charges, and she was at this time charged with theft in the fourth degree and theft in the fifth degree. The court was aware of these new facts and modified the existing orders by changing the visitations to supervised visits and mandating L.H. comply with all terms of her probation, involve herself in a community support program through AA and/or NA by attending at least one meeting a week, provide a drug free environment for the children, participate in a parenting skill development program and provide urine samples as requested by her probation officer.
On May 24,1999 L.H. was aggressive toward staff members at the residential treatment facility when she was asked to provide a urine specimen. On June 3 she failed to appear for an appointment at a substance abuse facility, and on June 11 canceled an appointment at the substance abuse facility. On June 13 she consumed alcohol knowing it was a violation of probation. On July 7 her probation was revoked and she was placed in the violators program. On July 15 L.H. was convicted of theft in the fourth degree. She entered the violators program on that day. On July 22 a warrant was issued for her arrest concerning a charge of theft in the fifth degree and on July 30 a warrant was issued with regard to a charge of theft in the fifth degree.
On July 19, 1999 L.H.'s attorney moved for a continuance of the scheduled review hearing, which had been rescheduled once because of the pending revocation hearing, stating L.H. was incarcerated in Violator's Program at the Newton Correctional Facility. The motion was granted and hearing was scheduled for October 25, 1999.
On September 14, 1999 L.H. was discharged from the violators program, having completed the program with only one minor infraction, and placed in residential treatment.
On September 27, 1999 a petition for the termination of the parental child relationship was filed. The hearing was held on October 25 and 26, 1999. L.H. remained in the residential treatment facility at the time of the October hearing. Since entry she had knowingly committed several major violations of its rules. The director of the program opined that L.H. was in danger of being dropped from the program and if that happened she would be returned to prison. L.H. elected to have no in-person contact with the children while in the violators program or the residential treatment facility reasoning she didn't want to expose them to that environment. She maintains contact by telephone and letter.
The court in the termination order succinctly summarizes a portion of the relevant evidence as follows:
A myriad of reunification services have been provided since Court intervention. These services have included several psychosocial evaluations; supervised visitations; several treatment programs for [L.H.], including the Synergy Center, the Jackson Street Manor, the Gordon Recovery Center, the Northwest Iowa Alcoholism and Drug Treatment Unit, the Violator's Program, and residential treatment care; the Parent Survival Program; individual counseling for both children; Family Centered Services; and counseling for [L.H.] with the children's therapist. Until recently [L.H.] had declined the Department's offer to provide her with individual therapy to address family of origin issues. [B.B.] has been involved in therapy since late 1997, whereas [A.B.] has been involved in therapy since May 1999. They continue to have weekly counseling sessions with (their therapist). [B.B.] and [A.B.] are difficult children to parent as they are both demanding and require one-to-one attention. [B.B.'s] behaviors have been improving, although she has a hard time controlling her behaviors, as evidenced by her disobedience of simple and direct rules. [A.B.'s] behaviors have been improving, although he still struggles with any kind of transition and expresses this by physically lashing out at people, with [B.B] being his favorite target. Both...
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