In the Interest of S.M., Minor Child, A.M., Mother ( 2015 )

IN THE COURT OF APPEALS OF IOWA
No. 15-0075
Filed July 22, 2015
IN THE INTEREST OF S.M.,
Minor Child,
A.M., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Christine Dalton,
District Associate Judge.
A mother appeals from a permanency order placing the child in the sole
custody of the father. AFFIRMED.
Barbara E. Maness, Davenport, for appellant mother.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney
General, Michael J. Walton, County Attorney, and Julie Walton, Assistant County
Attorney, for appellee State.
Christine Frederick of Zamora, Taylor, Woods & Frederick, Davenport, for
appellee father.
Maggie Moeller of Maria K. Pauley Law Firm, Davenport, attorney and
guardian ad litem for minor child.
Considered by Vaitheswaran, P.J., and Potterfield and McDonald, JJ.
2
POTTERFIELD, J.
A mother appeals from a permanency order placing the child in the sole
custody of the father. On our de novo review, we find an extension of time would
not result in the child being returned to the mother’s custody. The permanency
order entered is in the child’s best interests, and we therefore affirm.
I. Background Facts.
The child was removed from the mother’s care at birth in January 2014.
The removal order identified the risks of harm as the mother’s struggle with
substance abuse, mental illness, parenting deficits, unstable housing, volatile
relationships with others, criminal acts, and a history of neglect and physical
abuse of her previous children.1 The child was adjudicated in need of
assistance. She was first placed in a foster home, but in June 2014 was placed
with the biological father. A permanency hearing was held on December 16,
2014, at which time the juvenile court changed the permanency goal to
permanent custody of the child with the father, subject to the supervision of the
department of human services (DHS) until a district court order is obtained. The
mother appeals, contending the court should have granted her an extension of
time to achieve reunification. She also maintains the permanency order was not
in the child’s best interests.
II. Scope and Standard of Review.
“Our review of permanency orders is de novo.” In re A.A.G., 708 N.W.2d
85, 90 (Iowa Ct. App. 2005). We review both the facts and the law and
1
The mother’s rights to three children were terminated in September 2012.
3
adjudicate rights anew on the issues properly presented. Id. We give weight to
the juvenile court’s findings, but are not bound by them. Id.III. Discussion.
Iowa Code section 232.104(3) (2013) enumerates the conditions that must
be shown by clear and convincing evidence before the juvenile court can enter a
permanency order:
Prior to entering a permanency order pursuant to subsection
2, paragraph “d”,[2] convincing evidence must exist showing that all
of the following apply:
a. A termination of the parent-child relationship would not be
in the best interest of the child.
b. Services were offered to the child’s family to correct the
situation which led to the child’s removal from the home.
c. The child cannot be returned to the child’s home.
The juvenile court found all three conditions were established by clear and
convincing evidence, writing:
The child remains in need of assistance due to her mother’s
inability to effectively handle her mental illness. That illness, in
combination with her substance abuse, has led [the mother] to
provide inappropriate supervision to her children by exposing them
to dangerous people and situations. She was verbally and
physically abusive to her three oldest children. She was unable to
correct the adjudicatory harm; ultimately resulting in termination of
her parental rights [to those three children in September 2012].
[S.M.] is almost one year old, having been born [in January
2014.] She was removed upon discharge from the hospital . . . .
Initially, she resided in foster care but was placed with her father on
6-10-14 after paternity testing was completed. [The child] has
remained in her father’s continuous care to date. She is healthy
and happy in the home.
....
Permanency for the child must be established at this time.
Her placement with her father has been stable and safe. Her daily
needs are being met while in his care. The permanency goal
should be changed from reunification with the mother to transfer of
2
The pertinent provision here being, “Transfer sole custody of the child from one parent
to another parent.” Iowa Code § 232.104(2)(d)(2).
4
custody to the father. Permanent placement of [S.M.] with her
father is in the best interests of the child. Additionally, that
placement protects the child and allows a safe relationship with her
mother. Pursuant to Iowa Code section 232.104(4)[3] the child
should be continued in the custody of her father. The Court finds
there is clear and convincing evidence that the child cannot be
returned to the custody of her mother at this time, that services
were offered to correct the situation which led to her removal, and
termination of the parent-child relationship between the mother and
daughter would not be in the child’s best interest.
The mother does not challenge these findings. Rather, she contends the
juvenile court should have granted her a three-month extension, relying upon her
therapist’s written statement:
It is my belief that [the mother] will always be challenged by
her mental health and substance abuse issues but that she has
made significant progress beyond where she had been when her
rights were terminated with her older three daughters. She is
addressing her issues on a consistent basis in therapy,
volunteering information, sharing insights about herself, and
hearing feedback non-defensively. She has followed
recommendations I have made regarding calling DHS directly when
issues arise, about confronting her father, and about addressing
issues with her friend in an assertive manner. Additionally, she has
stayed out of relationships with men for over a year (to my
knowledge) which has allowed her to focus on herself.
Because [the mother] has made significant progress, is
awaiting approval for SSI, and has recently been approved for
Section 8 Housing it is my recommendation that she be given three
more months to meet the requirements set by DHS in order to
regain custody of her daughter.
In order to continue the permanency determination the statute requires the
court to make a determination the need for removal will no longer exist at the end
of the extension. Iowa Code § 232.102(2)(b). Under some circumstances
extensions may be appropriate, but “[a] parent does not have an unlimited
3
Section 232.104(4) provides, “Any permanency order may provide restrictions upon the
contact between the child and the child's parent or parents, consistent with the best
interest of the child.”
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amount of time in which to correct his or her deficiencies.” In re H.L.B.R., 567
N.W.2d 675, 677 (Iowa Ct. App. 1997); see also In re A.M., 843 N.W.2d 100, 112
(Iowa 2014) (“It is well-settled law that we cannot deprive a child of permanency
. . . by hoping someday a parent will learn to be a parent and be able to provide a
stable home for the child.”).
While we acknowledge that the mother has made progress, she has
received services (most recently) since the child’s removal in January 2014 and
is still unable to provide a safe and stable home for the child. She admittedly
relapsed in June 2014, she missed drug screens in October and November, she
was unable to attend visits with her child as a consequence of unresolved mental
health issues (obsessive compulsive disorder) in September and December, and
she remained unemployed and without suitable housing. From our de novo
review of the record, we also are unable to make a finding the need for removal
would no longer exist after an additional three months. The mother’s resistance
to acknowledging the need to address her substance abuse in an on-going
manner, her continued struggle with her mental health problems, and her lack of
stable housing and employment all militate against a finding that another three
months would eliminate the need for the child’s removal.
We agree with the juvenile court that the permanency order is in the
child’s best interests.
AFFIRMED.