In the Interest of R.M. and E.P., Minor Children, T.P., Mother ( 2017 )

IN THE COURT OF APPEALS OF IOWA
No. 17-0174
Filed April 5, 2017
IN THE INTEREST OF R.M. and E.P.,
Minor children,
T.P., Mother,
Appellant.
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Appeal from the Iowa District Court for Linn County, Susan F. Flaherty,
Associate Juvenile Judge.
Mother appeals from an order terminating her parental rights pursuant to
Iowa Code chapter 232 (2016). AFFIRMED.
Deborah M. Skelton, Walford, for appellant mother.
Thomas J. Miller, Attorney General, and Tabitha J. Gardner, Assistant
Attorney General, for appellee State.
Jeannine L. Roberts, Cedar Rapids, guardian ad litem for minor children.
Considered by Mullins, P.J., and Bower and McDonald, JJ.
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MCDONALD, Judge.
Tara appeals from an order terminating her parental rights in her children,
R.M. and E.P., pursuant to Iowa Code section 232.116(1)(h) (2016). Tara
contends the State failed to prove the statutory ground authorizing the
termination of her parental rights and the termination of her parental rights is not
in the best interests of the children.
We review proceedings terminating parental rights de novo. See In re
A.M., 843 N.W.2d 100, 110 (Iowa 2014). The statutory framework is well
established. Pursuant to section 232.116(1), the State must prove a statutory
ground authorizing the termination of a parent’s rights. See In re P.L., 778
N.W.2d 33, 39 (Iowa 2010). Section 232.116(1) sets forth the harms the
legislature has determined to be of sufficient concern to justify the breakup of the
family unit. Second, pursuant to section 232.116(2), the State must prove
termination of parental rights is in the best interest of the child. See id. Third, if
the State has proved both the existence of statutory harm and termination of a
parent’s rights is in the best interest of the child, the juvenile court must consider
whether any countervailing considerations set forth in section 232.116(3) should
nonetheless preclude termination of parental rights. See id. These
countervailing considerations are permissive, not mandatory. See A.M., 843
N.W.2d at 113. “The court has discretion, based on the unique circumstances of
each case and the best interests of the child, whether to apply the factors in this
section to save the parent-child relationship.” In re D.S., 806 N.W.2d 458, 475
(Iowa Ct. App. 2011).
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The State has the burden to prove its case by clear and convincing
evidence. See Iowa Code § 232.96. “Clear and convincing evidence is more
than a preponderance of the evidence and less than evidence beyond a
reasonable doubt.” In re L.G., 532 N.W.2d 478, 481 (Iowa Ct. App. 1995). “It is
the highest evidentiary burden in civil cases.” In re M.S., 889 N.W.2d 675, 679
(Iowa Ct. App. 2016). “It means there must be no serious or substantial doubt
about the correctness of a particular conclusion drawn from the evidence.” Id.
This significant burden is imposed on the State to minimize the risk of an
erroneous deprivation of the parent’s fundamental liberty interest in raising his or
her child. See Santosky v. Kramer, 455 U.S. 745, 759 (1982). We therefore
cannot rubber stamp what has come before; it is our task to ensure the State has
come forth with the quantum and quality of evidence necessary to prove each of
the elements of its case. See id. at 769.
We turn to the facts of this case. The family came to the attention of the
Iowa Department of Human Services (IDHS) following R.M.’s birth in 2013. The
hospital staff perceived Tara to have cognitive and functional impairment and
was concerned about Tara’s ability to care for the child. Hospital staff requested
IDHS make an assessment to determine whether to initiate assistance
proceedings. A social worker conducted an interview and assessment with Tara
in the hospital. Tara agreed to the initiation of assistance proceedings and the
receipt of services. Tara was allowed to leave the hospital with R.M. in her care
subject to the protective supervision of IDHS. Tara subsequently stipulated R.M.
was a child in need of assistance within the meaning of chapter 232.
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The mother received a great number and variety of services in support of
her and the child, including psychological and intelligence testing. The
intelligence tests confirmed Tara has significant cognitive and functional
impairment. Her IQ is 60, placing her in the bottom 0.4 percentile of all adults.
Her overall level of adaptive functioning is in the bottom 1% of the population.
Her capacity for commonsense judgment was found to be particularly poor, again
at the bottom 1% of the population. Her cognitive and functional impairment
prevents her from planning and from being able to assess the needs of others.
In October 2014, IDHS concluded Tara could not safely care for R.M.
There were numerous incidents supporting the conclusion. Of greatest import
was the fact R.M. was observed to have numerous, unexplained bruises and
scrapes. Many of the bruises and scrapes were on the child’s forehead, cheeks,
legs, and buttocks. R.M. was removed from Tara’s care and placed in foster
family care. Following R.M.’s placement in foster family care, her injuries were
notably reduced.
E.P. was born in January 2015, and he was immediately removed from
Tara’s care and placed in foster famiy care.
Following removal of the children, IDHS continued to provide Tara with
support services. Tara also received additional services from different agencies
because of her intellectual disability, including housing support and Social
Security Disability Income. IDHS hoped the significant resources provided to
Tara would prove sufficient to allow for reunification of the family. IDHS’s hopes
were not realized. IDHS ultimately concluded the children could not be returned
safely to Tara’s care despite the best efforts of all involved, including Tara. The
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juvenile court agreed and terminated Tara’s parental rights in both children
pursuant to section 232.116(1)(h).
Tara challenges the sufficiency of the evidence supporting the statutory
ground authorizing termination of her parental rights. As relevant here, the State
was required to prove by “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.” Iowa Code § 232.116(1)(h)(4). “[A] child cannot be returned
to the custody of the child’s parent under . . . section 232.102 if by doing so the
child would be exposed to any harm amounting to a new child in need of
assistance adjudication.” In re M.M., 483 N.W.2d 812, 814 (Iowa 1992). We
have interpreted this provision to require the State to prove the child would be
exposed to an “appreciable risk of adjudicatory harm.” M.S., 889 N.W.2d at 683.
The case most relevant to our resolution of this appeal is In re A.M. In
that case, IDHS removed a newborn from the care of the parents on concerns of
the parents’ ability to care for the child due to cognitive impairment. IDHS
provided the family with a significant number of services, and the parents made a
good-faith effort to comply with the services. The parents were simply unable to
internalize the necessary parenting skills to safely care for the child. The
supreme court explained “[A] parent’s ‘lower mental functioning alone is not
sufficient grounds for termination.’ But where it affects the child’s well-being, it
can be a relevant consideration.” A.M. 843 N.W.2d at 111 (citation omitted). The
supreme court concluded termination pursuant to section 232.116(1)(h) was
proper where “neither the mother nor father can internalize the necessary skills to
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keep A.M. safe and developing properly without the hovering supervision of
[I]DHS workers.” Id. at 111–12.
This record presents a stronger case supporting the termination of
parental rights than A.M. Here, the mother has a greater cognitive and functional
impairment than either of the parents in A.M. and is more limited in her ability to
care for herself, let alone care for others. The mother’s inability to care for the
children manifested itself in numerous ways throughout the course of this
proceeding. For example, the mother demonstrated an inability to properly
clothe and feed the children. When the mother attended medical appointments
with the foster family, the mother was unable to understand the outcome of the
appointments. The mother never exercised visitation without some level of
supervision and never progressed to overnight visits due to concerns about the
mother being able to care for both children at the same time. One service
provider testified the children could not be returned to the mother’s care without
ongoing daily supervision and support. Another testified Tara cannot be alone
with the children for more than a few hours without concern.
Unlike A.M., Tara has exposed the children to physical abuse. On one
occasion, a concerned citizen called the police after observing Tara verbally
abuse R.M. in a laundromat. As noted above, R.M. suffered unexplained
bruising and scrapes while in the mother’s care. The injuries stopped occurring
when the child was removed from the mother’s care. A founded report of child
abuse was made, although the perpetrator remained unidentified. Also unlike
A.M.’s parents, Tara has engaged in criminal conduct. Tara was arrested for
theft arising out of shoplifting incident. Finally, unlike the parents in A.M., Tara
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was not able to comply with the safety plan. She associated with criminals and
substance abusers. These persons were in her apartment and in the presence
of R.M. while R.M. was still in Tara’s care. We thus conclude the State proved
return of the children to Tara’s care would pose an appreciable risk of
adjudicatory harm to the children.
We must still determine whether termination of Tara’s parental rights is in
the children’s best interests. See P.L., 778 N.W.2d at 41. “We consider what the
future holds for the child[ren] if returned to [their] parents.” In re R.M., 431
N.W.2d 196, 199 (Iowa Ct. App. 1988). As in A.M., it is clear Tara would not be
able to safely care for the children without the “hovering supervision” of
numerous support workers. The children have a need for permanency. They are
thriving in their foster-care placements. The caseworker testified the children
appear to have a stronger bond with the foster mother than with Tara. While the
mother in this case clearly loves her children and clearly made a good-faith effort
to avail herself of services, “[i]t is well-settled law that we cannot deprive a child
of permanency after the State has proved a ground for termination under section
232.116(1) by hoping someday a parent will learn to be a parent and be able to
provide a stable home for the child.” P.L., 778 N.W.2d at 41.
There is no permissive consideration weighing against the termination of
the mother’s parental rights. See Iowa Code § 232.116(3).
For the above-stated reasons, we affirm the order terminating the mother’s
parental rights in her children.
AFFIRMED.