In the Interest of L.R., No. 9-993/09-1544 (Iowa App. 1/22/2010)

Decision Date22 January 2010
Docket NumberNo. 9-993/09-1544.,9-993/09-1544.
PartiesIN THE INTEREST OF L.R., Minor Child. B.C.R., Father, Appellant.
CourtIowa Court of Appeals

Appeal from the Iowa District Court for Tama County, Angeline M. Wilson, District Associate Judge.

A father appeals from the order terminating his parental rights.


John S. Livingston, Gladbrook, for appellant father.

Randal Giannetto, Marshalltown, for appellee mother.

Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant Attorney General, Brent D. Heeren, County Attorney, and Michael Marquess, Assistant County Attorney, for appellee State.

Jennifer L. Steffens of Bennett, Steffens & Grife, P.C., Marshalltown, for minor child.

Considered by Vogel, P.J., and Doyle and Mansfield, JJ.


A father appeals from the order terminating his parental rights. Upon our de novo review, we reverse.

I. Background Facts and Proceedings.

B.R. is the father and B.S. is mother of L.R., born April 2008.1 The mother's parental rights to another child were terminated in October 2007, due the mother's substance abuse addiction.2 At that time, the parents had been together for approximately a year and a half and were living together. The couple had a very chaotic relationship, mostly relating to the mother's substance abuse and mental health issues. The father admitted he had abused illegal substances in the past and had had a problem with alcohol. There were several incidents of domestic violence during the course of their relationship.

After L.R.'s birth, the Iowa Department of Human Services (Department) completed an assessment to determine L.R.'s welfare. Although the child was born without substances in the child's system, the Department was unable to verify that the mother had remained clean for an extended period of time prior to L.R.'s birth. The Department requested and the mother refused a hair stat test. On May 29, 2008, the State filed its petition asserting that L.R. was a child in need of assistance (CINA). Thereafter, the mother and father completed hair stat tests that were negative for all drugs. At that time, the mother and father's relationship appeared to be more stable. The mother was also attending classes and seemed to be getting her life in order. For these reasons, the parties agreed to continue the CINA adjudication for six months. The court continued drug testing for the mother and in-home services for the family.

In late September 2008, it was reported to the Department that the mother was using methamphetamine and was planning to continue using through the evening. It was further reported that the mother had L.R. with her and was looking for someone to care for him so she could continue using drugs. The Department opened an investigation and attempted to reach the family to assure the safety of the child. Although the Department's worker was able to reach the father by phone, the father was unwilling to meet with the investigator. The parents continued to be uncooperative with the Department and lied to the Department's workers about the mother's whereabouts. When the workers eventually made contact with the parents, the mother admitted she had used meth and that she and the father had gone to a hotel to hide from the workers. The mother stated that the father had not used and that both parents knew L.R. was safe with relatives. The Department then sought emergency removal of L.R. from the parents' care, and on October 3, 2008, the juvenile court temporarily removed L.R. from the parents' care and placed the child with L.R.'s grandparents. L.R. has not been returned to either of the parents' care since.

On October 22, 2008, a hearing was held on the State's CINA petition and for review of the temporary removal of the child. The parties agreed to continue custody of the child with the Department for purposes of relative placement, and the parties stipulated that the child was in need of assistance as set forth in the State's petition. The court then adjudicated L.R. a CINA and ordered that a social history report, along with a case permanency plan, be prepared. The case permanency plan recommended, among other things, that the father have a substance abuse evaluation and follow the recommendations made. Following a hearing, the juvenile court on November 19, 2008, entered its dispositional order adopting the case permanency plan and ordering that the parents provide urine samples for testing.

Due to health reasons, L.R.'s grandparents were unable to continue to care for L.R. L.R. was then placed with relatives of the father. The father visited L.R. during November and December, but did not take advantage of seeing L.R. as often as he could.

The father, who is fifty-three years old, had an alcohol abuse evaluation in December 2008. The evaluator found that a substance abuse problem existed. The evaluator found that the father appeared to have the recognition and understanding of his alcohol abuse disorder, but that the father did not believe he had a problem with drinking. The evaluator found that the father met the criteria for alcohol abuse, based upon the father's self-report, and that the father had a low probability of a substance dependence disorder. The report noted that the father scored a high defense score that might indicate a situational issue or that the father was not being honest in the evaluation session. The evaluator recommended that the father attend individual therapy sessions.

The father completed out-patient treatment successfully and began attending A.A. meetings. The father continued to provide samples for urinalysis that were not positive for alcohol or illegal substances. However, the father and the mother admitted that the father continued to consume alcoholic beverages and the father quit attending A.A. meetings. The mother implied that the father knew to avoid consuming alcoholic beverages in advance of urinalysis, but would consume them once again following each test.

Visitations with L.R. went well. However, in March and April 2009, there were more reports of disputes between the parents. One incident on March 13, 2009, apparently escalated to the level of domestic violence, although it was not reported to the police.3 The mother continued to abuse alcohol and drugs, and she continued to have mental health issues. The father continued to consume alcoholic beverages. The couple's rocky relationship continued until May, when the couple finally separated after the mother moved to Alabama to seek intensive mental health treatment. The parents had previously indicated to the service provider that they thought if the mother left town for awhile, the father could regain custody and then the mother could rejoin the family.

After the mother left in May, the father showed improvement and attended more visits with L.R. The father was permitted to transport L.R. to and from visits. The father admitted he continued to consume alcoholic beverages and failed to contact the service provider several times. Additionally, the mother occasionally contacted the father. There is no indication that the father behaved inappropriately during any of his visits with L.R. Witnesses agreed there was a bond between L.R. and the father. The father also provided some clothes and diapers for L.R. In addition, the father provided money to the relatives L.R. was placed with for L.R.'s care.

On May 21, 2009, the State filed its petition for the termination of the parents' parental rights. A contested hearing was held on August 26, 2009. The service provider testified the parents had failed to put the child first in the case, and neither parent stopped his or her behaviors so that L.R. could be returned to their care. The provider acknowledged that the father had made improvements in the case after the mother left, but the late improvement was not enough at that time to return the child to his care in her opinion. The provider testified that the father and child are bonded, but that the child is also bonded to the father's relatives with whom he was placed. The provider testified that the father was always appropriate with the child during the visits and appeared to be sober during the times he visited with the child.4

A report from the clinical psychologist, who completed a parenting evaluation of the father on August 14, 2009, found the father's relationship to the child was a positive one, in the sense that their interactions are rewarding for both of them. However, the psychologist suggested the father stop drinking altogether.

The Department's caseworker testified that after a domestic violence incident in November, she explained to the parents what they needed to do to have L.R. returned to their care, including that the father should abstain from drinking, as it was in L.R.'s best interests given the father's problems with alcohol. The worker testified that she believed termination of the parents' rights was in L.R.'s best interests. The worker testified that L.R. was doing well placed in the relatives' care and the relatives were willing to adopt L.R.

The father acknowledged he had been told by numerous people that drinking could harm his ability to keep his parental rights, but testified he continued to consume alcoholic beverages anyway. Both parents testified that they continued to have feelings for each other. The father testified, however, that he had no intention of reconciling with the mother.

There is no dispute that the father, who is fifty-three years old, has suitable employment and a suitable home where, potentially, L.R. could live with him.

On October 5, 2009, the juvenile court entered an order terminating the father's parental rights to the child pursuant to Iowa Code section 232.116(1)(h) (child is three or younger, child CINA, removed from home for six of last twelve months, and child cannot be returned home) and (l) (child CINA, parent has substance abuse problem, child cannot be...

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