In The Interest Of D.W., Minor Child, A.M.W., Mother,appellant., 0-653

• Court: Court of Appeals of Iowa
• Writing for the Court: POTTERFIELD, J.
• Parties: IN THE INTEREST OF D.W., Minor Child, A.M.W., Mother,Appellant.
• Docket Number: No. 10-1230,No. 0-653,0-653,10-1230
• Decision Date: 06 October 2010

IN THE INTEREST OF D.W.,
Minor Child,
A.M.W., Mother, Appellant.

No. 0-653
No. 10-1230

COURT OF APPEALS OF IOWA

Filed October 6, 2010

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

A mother appeals the termination of her parental rights to her child.

REVERSED.

Stephen W. Newport of Newport & Newport, P.L.C., Davenport, for appellant.

Thomas J. Miller, Attorney General, Janet L. Hoffman, Assistant Attorney General, Michael Walton, County Attorney, and Julie Walton, Assistant County Attorney, for appellee.

Jean Capdevila, Davenport, attorney and guardian ad litem for minor child.

Considered by Sackett, C.J., and Potterfield and Tabor, JJ.

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POTTERFIELD, J.

I. Background Facts and Proceedings

A.W., a twenty-two-year-old mother, challenges the termination of her parental rights to her one-year-old son, D.W. D.W. was born in June 2009. D.W. is A.W.'s third child. The juvenile court terminated A.W.'s parental rights to a daughter in 2007 and another son in 2008. The Iowa Department of Human Services (DHS) removed D.W. from his mother's care on August 25, 2009, after she left the infant with his putative father, D.T., who was very intoxicated at the time. DHS also believed D.T. was an inappropriate caregiver because he had a history of domestic violence. He and A.W. fought that day and the violence in their relationship was part of the calculus in terminating their parental rights to an older son they had in common. After their confrontation on August 25, 2009, A.W. obtained a protective order against D.T. She did not have contact with D.T. during the pendency of the case.

The court adjudicated D.W. to be a child in need of assistance (CINA) on September 23, 2009. DHS placed D.W. in foster care with two siblings who had been adopted by the foster family. A.W. had supervised visits with D.W. three times a week at the apartment she shared with her mother and her mother's boyfriend. A.W. was no longer using controlled substances.

On April 21, 2010, the State petitioned for termination of A.W.'s parental rights. On July 13, 2010, the juvenile court issued its order terminating A.W.'s

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parental rights to D.W. based on Iowa Code sections 232.116(1)(d), (e), (g), (h), (i) and (/) (2009) and 232.117.¹ A.W. appeals.

II. Scope and Standard of Review.

We review de novo the juvenile court's decision to terminate parental rights. In re Z.H., 740 N.W.2d 648, 650 (Iowa Ct. App. 2007). The parent-child relationship is constitutionally protected. Qui//oin v. Wa/cott, 434 U.S. 246, 255, 98 S. Ct. 549, 554, 54 L. Ed. 2d 511, 519 (1978); Wisconsin v. Yoder, 406 U.S. 205, 233, 92 S. Ct. 1526, 1542, 32 L. Ed. 2d 15, 35 (1972). The State must prove grounds for termination by clear and convincing evidence. In re J.E., 723 N.W.2d 793, 798 (Iowa 2006). Evidence is clear and convincing when it leaves no serious or substantial doubt about the correctness of the conclusion drawn from it. In re D.D., 653 N.W.2d 359, 361 (Iowa 2002). Our primary concern is the best interests of the children. Id.

III. Mental Disability

A.W. argues on appeal that her parental rights were terminated solely because of her mental disability. A mental disability alone is not a sufficient reason for the termination of the parent-child relationship, but may be "a contributing factor to the inability to perform the duties of a parent." In re O'Neal, 303 N.W.2d 414, 422 (Iowa 1981). Thus, mental disability is a proper factor to consider in determining whether the child's interests and welfare require a

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termination of the parent-child relationship. Id. However, this standard is only meaningful if there is an "inability to parent." See In re K.F., 437 N.W.2d 559, 560 (Iowa 1989). On our de novo review of the record, we cannot find that such an inability to parent exists in this case.

A.W. has low intellectual functioning, a fundamentally limited ability to process information. However, the record shows that A.W. has accomplished much despite her mental challenges. Care providers testified that A.W. responded to services. Indeed, a review of the record reveals that A.W. made steady progress and benefitted from DHS services. The DHS case manager assigned to this case testified that A.W. attends to D.W.'s needs in general: she prepares meals for her son, changes his diapers, gets him out of his car seat when he arrives for visits, plays with him, takes him to the park, and takes him to the store to buy gifts and have his picture taken. She is affectionate with the child and has demonstrated the ability to nurture him; he has a bond with her. Further, she had maintained her sobriety from illegal drugs for two and one-half years at the time of trial. She obtained a protective order to prevent contact from her abusive boyfriend and the father of two of her children and has not had contact with him. She has maintained stable housing with her mother and her mother's boyfriend, who provide some support to her. Based on this information, we cannot agree with the juvenile court's conclusion that in the past four years A.W.'s "capacities have not changed as to her life choices and her parenting."

Although the record also shows that providers have had to repeat instructions for A.W., that she answered some questions wrong on a parenting

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assessment, and that she may have difficulty planning activities for D.W as he grows and develops, no one testified she was unable to learn basic skills or was unwilling to accept help.² Though a care provider noted that A.W. did not "step in" to help the visit's supervisor hold the child as they sat outside on the stairs, the same provider described the mother as doing a "good job ensuring that [D.W.] did not fall down the steps" a week later. We believe A.W. has shown "real and steady...