Opinion
No. 4-722 / 04-1411
Filed December 8, 2004
Appeal from the Iowa District Court for Pottawattamie County, Kathleen A. Kilnoski, District Associate Judge.
Mother appeals the order terminating her parental rights to her sons. REVERSED.
Phil Caniglia, Council Bluffs, for appellant-mother.
Aaron Rodenburg, Council Bluffs, for father.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, Matthew Wilber, County Attorney, and Jon Narmi, Assistant County Attorney, for appellee-State.
Troyce Wheeler, Council Bluffs, for child.
Considered by Vogel, P.J., and Miller and Eisenhauer, JJ.
Rachelle appeals the termination of her parental rights to Tyler, born in June of 2000, Zachary, born in February of 2002, and Conner, born in April of 2003. Rachelle substantially complied with DHS requirements and court orders; however, the compliance bar was raised at the termination hearing. We conclude clear and convincing evidence did not support the statutory elements as alleged in the termination petition. We reverse.
I. Background Facts and Proceedings
Rachelle came to the attention of the Iowa Department of Human Services on February 2, 2002, when her son, Zachary, was born drug affected and taken into protective custody. A child in need of assistance (CINA) hearing was held on March 11, 2002, for Zachary. The district court recognized that the State had demonstrated a factual basis for adjudicating Zachary a CINA but suspended this finding until the dispositional hearing. On April 15, 2002, the dispositional hearing was held and the district court granted Rachelle's motion for suspended adjudication.
Tyler and Zachary were again taken into protective custody on October 10, 2002, when Rachelle's home was determined to be unfit for habitation. On November 5, 2002, Tyler was adjudicated a CINA based on Iowa Code section 232.2(6)(g) (parent fails to provide adequate food, clothing, or shelter) (2001) and (n) (parent's drug abuse results in child not receiving adequate care) (2001). A CINA review modification hearing was held on November 5, 2002, for Zachary. The district court's order made sufficient findings for Zachary to be adjudicated a CINA but failed to expressly so adjudicate. On March 29, 2004, an order Nunc Pro Tunc was filed whereby Zachary was adjudicated a CINA as defined by Iowa Code section 232.6(o) (illegal drug present in child), effective November 20, 2002.
On June 5, 2003 a CINA review hearing was held, and it was ordered that Tyler and Zachary be returned to the care of Rachelle. However, on June 9, 2003, DHS learned that Rachelle had tested positive for amphetamines and methamphetamines on June 3, 2003. An ex-parte removal order was filed on June 11, 2003 for Tyler, Zachary, and Rachelle's youngest child, Conner. On September 9, 2003, Conner was adjudicated a CINA pursuant to Iowa Code section 232.6(n) (parent's drug abuse results in child not receiving adequate care).
On September 2, 2003, Rachelle married Scott. Scott abhors drug abuse. In late January and early February of 2004, an Interstate Compact home study was undertaken by Nebraska Health and Human Services. This home study report recommended "that Rachelle and [Scott] be approved for placement for Tyler, Zachary, and Conner in their home in Nebraska, contingent upon Rachelle having completed her drug treatment and having a period of [no] positive UA's." In March of 2004 Rachelle completed outpatient drug treatment, and all of her drug screens since June 3 of 2003 have come back negative, indicating that she has been drug free since that time.
A contested hearing to terminate Rachelle's parental rights was held on May 10 and June 4, 2004. On August 26, 2004 the juvenile court filed an order terminating Rachelle's parental rights pursuant to Iowa Code sections 232.116(1)(h) and (l) (2003).
II. Scope of Review
Termination orders are reviewed de novo. See In re M.M.S., 502 N.W.2d 4, 5 (Iowa 1993). We give weight to the trial court's findings of fact, but are not bound by its determinations. In re R.K.B., 572 N.W.2d 600, 601 (Iowa 1998). The State must prove the grounds for termination by clear and convincing evidence. In re E.K., 568 N.W.2d 829, 831 (Iowa Ct.App. 1997).
III. Issue
The only issue presented for our review on appeal is whether there was clear and convincing evidence to support the termination of Rachelle's parental rights under the code sections alleged. Specifically, Rachelle asserts that the State failed to prove that Tyler, Zachary, and Conner could not be returned to her custody under Iowa Code section 232.116(1)(h), or that Rachelle has a severe, chronic substance abuse problem, presenting a danger to herself or others within the meaning of Iowa Code section 232.116(1)(l).
A. Iowa Code section 232.116(1)(h)
Iowa Code section 232.116(1)(h) provides that a juvenile court may terminate the parental rights and relationship between a parent and child when the court finds that all of the following have occurred:
(1) The child is three years of age or younger.
(2) The child has been adjudicated a child in need of assistance pursuant to section 232.96.
(3) The child has been removed from the physical custody of the child's parents for at least six consecutive months and any trial period at home has been less than thirty days.
(4) There is 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.
Rachelle does not dispute the existence of the first three factors under subsection (h), she does however argue that the State failed to prove by clear and convincing evidence that her children could not be returned to her. The district court found otherwise stating.
The children cannot be returned to Rachelle because of her failure to complete substance abuse treatment in a timely manner, her failure to engage in aftercare services, and her failure to maintain stable jobs, homes and relationships with men.
However, an examination of the DHS permanency plans and the juvenile court orders made throughout the pendency of this case reveals what was required of Rachelle to regain custody of her children. See In re V.B., 491 N.W.2d 168, 170 (Iowa Ct.App. 1992) (DHS has the responsibility to specify the services with which a parent must comply in a case permanency plan). This examination further demonstrates that while not always exemplary in her compliance, Rachelle did eventually accomplish what was required of her.
The stated goal of the DHS case permanency plans from June 4, 2003, until the most recent on May 4, 2004, was that Tyler, Zachary, and Conner be reunified with Rachelle and that they, "be maintained in a safe, nurturing, drug free environment." The only responsibilities placed on Rachelle in furtherance of this goal were that she "follow through with all services ordered by the court" and that she "provide her children with a stable home environment, free of drug exposure." The juvenile court orders issued since October 14, 2003, after Rachelle obtained her most recent chemical dependency evaluation, can be boiled down into requiring the following: (1) Rachelle participate in family centered services, (2) Rachelle complete her chemical dependency treatment, (3) Rachelle submit to UA screenings, and (4) Rachelle maintain housing. Rachelle met every one of these requirements as even a DHS case manager testified on direct examination. Furthermore, while it is true, as the State emphasized, that Rachelle took nine months to complete an eight-week drug treatment program, it is also true that the providers of the treatment program determined that Rachelle "achieved satisfactory progress," and that the program was completed well before the termination hearing. Thus, if responsibilities were placed on Rachelle to regain custody of the children, and if Rachelle fulfilled her responsibilities, then the reasons cited in the termination order for concluding the children could not be returned to her were reasons she was not on notice of through the various permanency plans and prior court orders.
The final juvenile court order prior to the termination hearing was entered on January 21, 2004 and required that Rachelle "maintain housing and employment." Employment is not mentioned as a requirement in any of the preceding court orders and is of minor importance as Rachelle's husband owns a tow truck company and draws an annual salary sufficient to provide the children economic stability.
Moreover, the court's conclusion that the children cannot be returned to Rachelle's care without risk of the adjudicatory harm is contrary to the most recent home study done. The state of Nebraska conducted a home study of Rachelle's marital home and recommended that Rachelle and her husband, Scott, be approved for placement for Tyler, Zachary, and Conner, "contingent upon Rachelle having completed her drug treatment and having a period of [negative] UA's." Rachelle has completed her drug treatment and has maintained a period of negative UAs.
The juvenile court based its rejection of the Nebraska home study recommendation largely on Rachelle's and Scott's failure to fulfill a recommendation of the Nebraska home study to participate in marriage counseling. The Nebraska home study did recommend "that Rachelle and Scott have some marital therapy in order to insure the stability of their marriage." It is also true that Rachelle and Scott had not, at the time of the termination hearing, participated in marriage counseling. However, Rachelle had a legitimate reason for failing to comply with the Nebraska recommendation as the report had not been received from Nebraska by the commencement of the termination hearing. Thus, the juvenile court's rejection of the Nebraska home study recommendation was based on Rachelle's failure to comply with a marital counseling recommendation of which she had no prior notice.
The Nebraska home study had not been received by the time of the May 10, 2004, hearing but was received about one week prior to resumption of the hearing on June 4th. A DHS case manager testified that this delay was not the fault of Rachelle, but of Nebraska, and that Rachelle had not violated any DHS recommendation by failing to go to marital therapy.
Additionally, the juvenile court placed undue emphasis on the home study report's marital counseling recommendation. The home study made placement of the children with Rachelle contingent upon the completion of drug treatment and a period of negative drug tests. The home study then merely "recommended" marital therapy. Thus, unlike the completion of drug therapy and negative drug tests, the marital therapy recommendation was not mandatory, but rather a recommendation.
While Rachelle's troubled history clearly verifies that she has been less than a model parent, she has made significant progress, and has done what the court and the DHS have required of her. We conclude that the State did not demonstrate by clear and convincing evidence that Tyler, Zachary, and Conner could not be returned to Rachelle under Iowa Code section 232.116(1)(h).
In fact the May 3, 2004, court appointed special advocate (CASA) volunteer report produced for the termination hearing states that Rachelle "has made a lot of improvement in her ability to become drug free. . . ."
B. Iowa Code section 232.116(1)(l)
Iowa Code section 232.116(1)(l) provides that a juvenile court may terminate the parental rights and relationship between a parent and child when the court finds that all of the following have occurred:
(1) The child has been adjudicated a child in need of assistance pursuant to section 232.96 and custody has been transferred from the child's parents for placement pursuant to section 232.102.
(2) The parent has a severe, chronic substance abuse problem, and presents a danger to self or others as evidenced by prior acts.
(3) There is clear and convincing evidence that the parent's prognosis indicates that the child will not be able to be returned to the custody of the parent within a reasonable period of time considering the child's age and need for a permanent home.
Rachelle argues the State failed to prove by clear and convincing evidence that she has a severe, chronic substance abuse problem and presents a danger to self or others, and that there is not evidence that her prognosis indicates that the children cannot be returned to her within a reasonable time. In support of its contrary conclusion the juvenile court stated: "The parents have known of the court's order and the department's case plan calling for them to complete outpatient treatment and aftercare services for over two years. They have failed to make any diligent effort to complete their programs." We do not find this statement to be accurate or supported by the evidence.
First, Rachelle made an effort to and did complete her chemical dependency treatment. Second, while the court orders leading up to the termination hearing ordered that "Rachelle complete her chemical dependency treatment" they did not require that she participate in any type of aftercare services. In fact, neither the court nor DHS ever ordered that Rachelle follow the recommendations of her chemical dependency treatment program or that she participate in a twelve step program. The only juvenile court orders requiring the following of any recommendations required that Rachelle "obtain a chemical dependency evaluation and follow through with the recommendations of said evaluation." Once this evaluation was completed, the court orders changed and required only that she "complete her chemical dependency treatment," which Rachelle did do. Thus, Rachelle completed all that was asked of her; she completed her chemical dependency treatment. Yet, the district court held the bar a little higher at the termination hearing, by faulting her for not completing something she was not required to do to regain custody of her children.
As previously noted, the DHS permanency plans order only that Rachelle "follow through with all services ordered by the court" and that she "be able to provide her children with a stable home environment, free from drug exposure."
These court orders were entered on October 21, 2002, after Rachelle initially tested positive for methamphetamine but before she had received a chemical dependency evaluation and on July 8, 2003, and September 11, 2003, before Rachelle received a chemical dependency evaluation following her relapse in June of 2003.
Furthermore, the recommendation of Rachelle's chemical dependency treatment provider that Rachelle attend a twelve step program is lumped in with several other recommendations from this treatment provider that even State witnesses admitted she followed, namely that she "abstain from all mood-altering chemical[s]" and "surround herself with healthy people and activities." Thus, assuming arguendo that Rachelle were ordered to follow the recommendations of her chemical dependency treatment, she would still be in substantial compliance with this order.
Moreover, Rachelle's failure to attend a twelve step program is far from clear and convincing evidence of a "severe, chronic substance abuse problem." See Iowa Code § 232.116(1)(l). This conclusion is bolstered when other facts occurring within the year preceding the termination hearing are considered. For instance, Rachelle had completed treatment, had not tested positive for an illicit substance since June 3 of 2003, and had not missed any drug screening tests. In fact, she had requested to be tested more often. Rachelle had also married a man who has nothing but disdain for drug abuse. Finally, and quite significantly, Rachelle underwent a chronic substance abuse examination by a physician in November of 2003. Following this examination the physician provided the following answers to the following questions:
In your judgment, is [Rachelle] a substance abuser? No.
In your judgment, is [Rachelle] treatable? Yes . . . [b]ut no need for treatment.
In your judgment, is [Rachelle] likely to physically injure . . . herself or others? No.
In your judgment is [Rachelle] likely to inflict severe emotional injury on those who cannot avoid contact with [her]? No.
Additionally, the examining doctor made the following statements in his written report:
[Rachelle] had no abnormal behavior, restlessness, psychomotor agitation or abnormalities of speech, which would suggest illicit use of substances. . . . A drug screen was obtained in the emergency room, with complete cooperation by the patient and was negative for all illicit substances and for alcohol. Physical examination by the ER physician revealed no signs of any injection sites or suspicion of abuse of illicit substances. The septum was not deviated. She categorically denies any resumed abuse of any illicit substances, says that she is complying with maintaining her treatment at family services and has abstinence from substance use as her goal . . . past history of substance abuse, currently in remission.
Furthermore, there is no evidence of substance use by Rachelle since that report.
Therefore, we conclude the juvenile court was mistaken in its belief that it or DHS had ordered Rachelle to participate in an aftercare program such that a failure to so attend would support termination of Rachelle's parental rights. We further conclude that even if aftercare had been ordered, that any such failure in attendance on the part of Rachelle is not sufficient, in light of the other evidence demonstrating a lack of a current substance abuse problem, to carry the State's burden of demonstrating a severe, chronic substance abuse problem by clear and convincing evidence.
Finally, we note that the district court did not cite any evidence in support of its conclusion that Rachelle's prognosis indicates that the children cannot be returned to her in a reasonable time as required by Iowa Code section 232.116(1)(I)(3). Our review of the record reveals that clear and convincing evidence does not support such a conclusion. IV. Conclusion
While the district court's termination order did provide reasons for its conclusion that the children could not be returned to Rachelle under Iowa Code section 232.116(1)(h) it did not provide any reasons for this conclusion under Iowa Code section 232.116(1)(I). To the extent the reasons advanced under section 232.116(1)(h) were intended to support termination under Iowa Code section 232.116(1)(l), we conclude the State failed to demonstrate by clear and convincing evidence that the children cannot be returned to Rachelle for the reasons indicated in our analysis rejecting termination under Iowa Code section 232.116(1)(h).
While our foremost concern is the best interests of the children, we cannot brush aside a parent's genuine efforts and substantial compliance with DHS requirements and court orders. During the pendency of the CINA case, Rachelle was told by DHS and by the district court what she needed to do to regain custody of her children. While she was not a model of compliance, Rachelle did complete what was required of her. The basis for the termination of her parental rights was either that she failed to satisfy requirements she was not previously instructed to comply with or that she took too long to complete her tasks.
We conclude that the State cannot carry its burden of clear and convincing evidence to support termination of parental rights where, absent a new threat to the safety of the children, the majority if not the entirety of the State's evidence in support of termination is the failure of a parent to comply with requirements placed on her at the termination hearing.