In the Interest of H v. Minor Child ( 2020 )

IN THE COURT OF APPEALS OF IOWA
No. 20-0934
Filed October 21, 2020
IN THE INTEREST OF H.V.,
Minor Child,
J.H., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Susan Cox, District
Associate Judge.
A mother appeals the termination of her parental rights to her now six-year-
old son. REVERSED AND REMANDED.
Dusty Lea Clements of Clements Law and Mediation, Newton, for appellant
mother.
Thomas J. Miller, Attorney General, and Toby J. Gordon, Assistant Attorney
General, for appellee State.
Charles Fuson and Nicole Garbis Nolan of Youth Law Center, Des Moines,
attorneys and guardians ad litem for minor child.
Considered by Vaitheswaran, P.J., and Tabor and Schumacher, JJ.
2
TABOR, Judge.
The juvenile court decided domestic violence, addiction, and mental-health
concerns prevented Jessica from safely parenting her son, H.V. Jessica appeals
the termination of her parental rights, raising five issues.1 First, she argues the
State failed to offer clear and convincing evidence H.V. could not be returned to
her care. Driving that argument is her challenge to the State’s exclusive reliance
on electronic exhibits without calling witnesses at the termination hearing. Second,
she asserts the court should have granted her six more months to achieve
reunification. Third, she claims termination was not in H.V.’s best interests.
Fourth, she complains the Iowa Department of Human Services (DHS) did not
make reasonable efforts to return H.V. home. This complaint includes an
allegation that the DHS discriminated against her because she took Adderall to
treat her attention-deficit hyperactivity disorder (ADHD). And fifth, she argues that
rather than terminating her rights, the court should have established a
guardianship for H.V. with his aunt.
Because the first issue controls, we need not reach the remaining claims.
“The State has the burden to prove its case by clear and convincing evidence.” In
re M.S., 889 N.W.2d 675, 679 (Iowa Ct. App. 2016). In considering whether the
State offered substantial evidence to support the statutory ground, we “review the
facts as well as the law and adjudicate rights anew on those propositions properly
preserved and presented to us.” In re O’Neal, 303 N.W.2d 414, 422 (Iowa 1981).
1The juvenile court also terminated the rights of H.V.’s father, Randy. He is not a
party to this appeal.
3
In our de novo review, we find the State failed to meet its burden when it rested its
case without calling a single witness.
I. Facts and Prior Proceedings
H.V. tested positive for marijuana at his birth in May 2014.2 Based on the
baby’s drug exposure, the family received voluntary services from the DHS for
about six months. The family’s next contact with the DHS occurred in 2016 when
H.V.’s father, Randy, struck Jessica while she was holding the child. Randy was
arrested and later convicted of domestic abuse assault. The parents
acknowledged that H.V. witnessed domestic violence on other occasions.
About two years later, the DHS investigated reports that the parents were
using methamphetamine while caring for H.V. After testing positive for
amphetamines and methamphetamine in October 2018, Jessica consented to
temporary removal of H.V. from her custody. The DHS placed H.V. with his
maternal grandmother.
Jessica continued to struggle with substance-abuse and mental-health
issues in the months after H.V.’s removal. At an October 2018 substance-abuse
evaluation, she reported having a prescription for Adderall to treat her ADHD. The
evaluator did not refer Jessica to substance-abuse treatment but instead
2 We derive these facts from the child-in-need-of-assistance (CINA) proceedings.
At the county attorney’s request and without objection from the parents’ attorneys,
the juvenile court took judicial notice of H.V.’s CINA file. Our supreme court allows
courts considering termination petitions to take judicial notice of the CINA case.
See In re Adkins, 298 N.W.2d 273, 277–78 (Iowa 1980). But Adkins requires the
parties to follow “certain safeguards,” including marking and identifying the parts
of the record being noticed. Id. at 278 (“Otherwise, a meaningful review is
impossible.”). That proviso was not followed here, somewhat hindering our review.
4
recommended a mental-health assessment. Yet Jessica again tested positive for
amphetamines and methamphetamine in December.
In March 2019, Jessica underwent the recommended mental-health
evaluation. She told the counselor that she was “getting Adderall on the streets
because her primary doctor would no longer prescribe it to her.” Later that spring,
Jessica addressed her addiction, providing negative drug screens in March, April,
and May. She also attended Alcoholics Anonymous/Narcotics Anonymous
meetings. Based on her progress, the DHS allowed her semi-supervised visitation.
But in June, Jessica failed to provide drug tests, claiming the samples were
contaminated. Her sweat patch tested positive for amphetamines and
methamphetamine in late June, though she denied using drugs. A few days later,
she sought renewed treatment for her ADHD and received a thirty-day prescription
for Adderall. The next month, she again tested positive for amphetamines and
methamphetamine. Based on this setback, her visitation moved back to fully
supervised. In August, she tested positive for amphetamines but negative for
methamphetamine. Those same test results recurred in September and October.
Jessica also reengaged with Randy that August, allowing him to talk to H.V.
on the phone from jail—against DHS directives. Meanwhile, tensions grew
between Jessica and her mother, prompting the court to change H.V.’s placement.
After a short stint with a foster family, H.V. went to live with his Aunt Crystal in
August 2019. The DHS believed Crystal could draw appropriate boundaries with
H.V.’s parents and protect him from any risk posed by Jessica’s drug use. And
Crystal has supported H.V.’s therapy for his diagnosis of post-traumatic stress
disorder tied to his early childhood traumas.
5
In October, DHS caseworker Heather Bush recommended the court grant
Jessica a six-month extension to reunify with H.V. The worker wrote: “Jessica is
doing a lot of work and trying very hard right now.” Nevertheless, the State filed
its petition to terminate parental rights in November. The juvenile court combined
the permanency hearing with the termination-of-parental-rights trial, which
spanned three days between December 2019 and February 2020. The State
declined to call any witnesses and instead presented its entire case through
electronic exhibits.3 Jessica’s counsel objected to the exhibits, arguing: “I would
like to see them come in through proper foundation through the appropriate
witness.” When the court asked what foundation was lacking, counsel responded:
[W]e have a fairly lengthy amount of cross-examination for the DHS
workers in this case. And while we can call them as our witnesses,
I feel like that’s almost shifting it to us to present the case. And I
think the State needs to . . . meet [its] burden and call the witnesses
to testify, and then we would be able to . . . cross-examine the DHS
workers.
The court overruled counsel’s lack-of-foundation objection to the State’s exhibits.
The court added that if parents’ counsel decided to call the DHS workers to testify,
3 Those exhibits included: (1) TPR report by DHS (November 26, 2019);
(2) mother’s mental-health evaluation (March 5, 2019); (3) mother’s therapy letter
(June 6, 2019); (4) H.V.’s therapy letter (June 8, 2019); (5) Recovery Court letter
(September 5, 2019); (6) mother’s therapy letter (August 2, 2019); (7) mother’s
therapy letter (October 3, 2019); (8) H.V.’s therapy letter (September 27, 2019);
(9) mother’s hair test (August 14, 2019); (10) lease offered by mother’s counsel
(September 28, 2019); (11) mother’s substance-abuse evaluation (October 25,
2018); (12) father’s criminal history; (13) father’s petition to plead guilty;
(14) father’s sentencing order; (15) father’s Polk County jail call record; (16) H.V.
therapy update (December 3, 2019); (17)–(19) letters in support of Jessica;
(20) Jessica’s prescription for Adderall; (21) text message from DHS worker on
visitation; and (22) mother’s family safety, risk, and permanency (FSRP) report
(December 2, 2019). The State also offered twenty-seven exhibits, without any
testimony, as part of the CINA-permanency proceeding.
6
the law allowed counsel to treat them as hostile witnesses. The court also granted
the State’s request to take judicial notice of the CINA file.
So in an unusual turn, the court admitted the State’s exhibits, and the State
rested its case. Jessica’s counsel then called all the witnesses, including DHS
caseworkers Heather Bush and Alicia Bechtel, her mental-health and substance-
abuse counselor, the FSRP provider, H.V.’s therapist, and H.V.’s aunts. Jessica
also testified. At the February 2020 hearing, she discussed her mental health,
particularly her ADHD, and her addiction to Adderall. She also testified she had a
job, stable housing, and would be able to care for H.V.
The State cross-examined those witnesses but did not circle back to lay a
foundation for any of its exhibits. After a third day of hearings in early February,
the court left the record open for two weeks for the parties to submit written closing
arguments. Jessica’s closing argument included the following critique of the
State’s case:
The undersigned attorney, on behalf of the Mother, does not believe
that the State met [its] burden and proved by clear and convincing
evidence that the mother’s rights to the child should be terminated.
The State did not present any witnesses in this case and relied solely
on the exhibits that were filed. No updated termination report was
filed for the second and third days of the hearing.
The State did not file a closing argument. Neither did H.V.’s guardian ad litem.
In its finding of facts, the juvenile court relied on the State’s exhibits, which
were offered and admitted without any witnesses to lay foundation for their
authenticity or identification. See Iowa R. Evid. 5.901. The court also shared its
personal observations that Jessica’s actions were “consistently strange and
7
disruptive” during the three-day trial.4 In its conclusions of law, the court terminated
Jessica’s parental rights under Iowa Code section 232.116(1)(f) (2019).
II. Analysis
As a natural parent, Jessica has a fundamental liberty interest in raising
H.V. See Santosky v. Kramer, 455 U.S. 745, 753 (1982). That interest “does not
evaporate simply because . . . [she has] not been [a] model parent[].” Id. Given
the heft of that fundamental interest and to minimize the risk of its deprivation, we
impose a significant burden on the State to prove the elements of its termination
allegation by clear and convincing evidence. See M.S., 889 N.W.2d at 679. “Clear
and convincing” is the highest evidentiary burden in civil cases and means we
should harbor “no serious or substantial doubt about the correctness of a particular
conclusion drawn from the evidence.” See id.
The State alleged that the juvenile court should terminate Jessica’s rights
under section 232.116(1)(f). That section allows the court to terminate rights if the
State establishes these elements:
(1) The child is four years of age or older.
(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 twelve of the last eighteen months, or
for the last twelve consecutive months and any trial period at home
has been less than thirty days.
(4) There is clear and convincing evidence that at the present
time the child cannot be returned to the custody of the child’s parents
as provided in section 232.102.
4 The court noted at the end of the third day of hearings that Jessica’s “demeanor
and physicality” were “markedly different” from the other hearing dates in
December 2019 and January 2020. The court specified: “There was not that type
of jerky, over-the-top motion that I described previously. But then from 3:00 to
now—it’s 4:12. After the 3:00 break, I did notice the mother struggling repeatedly
to stay awake. There were long periods of time where she had her eyes closed.”
8
Iowa Code § 232.116(1)(f). Jessica only challenges the State’s proof of the fourth
element—that H.V. cannot be returned to her custody without exposing him to
harm that would merit a new CINA adjudication. See M.S., 889 N.W.2d at 680.
She argues the State failed to meet its significant burden because it called no
witnesses to lay a proper foundation for its exhibits and did not update those
exhibits when the proceedings spanned three months. She contends the court
should have sustained her objection to the exhibits. By not doing so, in her view,
the court shifted the burden of proof.
Although neither party cites Iowa Code section 232.96, that provision
governs the admissibility of evidence in child-welfare cases. See In re E.J.R., 400
N.W.2d 531, 531 (Iowa 1987) (applying section 232.96 to termination
proceedings). As a baseline, “[o]nly evidence which is admissible under the rules
of evidence applicable to the trial of civil cases shall be admitted” in a child-welfare
proceeding, except as otherwise provided in this section. Iowa Code § 232.96(3).
An exception appears in section 232.96(6):
A report, study, record, or other writing or an audiotape or videotape
recording made by the department of human services, a juvenile
court officer, a peace officer or a hospital relating to a child in a
proceeding under this division is admissible notwithstanding any
objection to hearsay statements contained in it provided it is relevant
and material and provided its probative value substantially outweighs
the danger of unfair prejudice to the child’s parent, guardian, or
custodian. The circumstances of the making of the report, study,
record or other writing or an audiotape or videotape recording,
including the maker’s lack of personal knowledge, may be proved to
affect its weight.
Under this section, “certain hearsay evidence that would be otherwise prohibited
by the Iowa Rules of Evidence is expressly admissible in such proceedings.” 7
9
Laurie Kratky Doré, Iowa Practice Series: Evidence § 5.1101:3 (Nov. 2019
update); see In re Long, 313 N.W.2d 473, 478 (Iowa 1981) (upholding admission
of social services report because “person who prepared the exhibit was closely
cross-examined regarding the circumstances of the making of the report and the
sources for the information contained in it”).5
The exception in subsection (6) does not apply here. Jessica’s counsel did
not object to the exhibits on hearsay grounds.6 She objected because the State
did not venture to lay any foundation for the more than one dozen electronic
exhibits it relied on to prove its case. Our rules require the proponent of an exhibit
to produce evidence sufficient to support a finding that it is what the proponent
claims. See Iowa R. Evid. 5.901(a). The rule then lists examples of how to
authenticate or identify evidence—chief among them is to call a witness with
knowledge of the exhibit. See id. at 5.901(b)(1)–(10).
5 In addressing a similar issue, our court stated: “What Long does not stand for is
the proposition that the State need not call foundational witnesses in CINA cases.”
In re A.C., No. 13-1045, 2013 WL 5962918, at *2 (Iowa Ct. App. Nov. 6, 2013).
Still, our court affirmed the CINA adjudication in A.C., citing In re Delaney, 185
N.W.2d 726, 732–33 (Iowa 1971), a delinquency case where the court held the
juvenile had a burden to exhaust the legal process for securing the desired
witnesses for cross-examination. Id. We decline to follow A.C. because that case
did not address the question of burden-shifting raised by Jessica here.
In other opinions addressing section 232.96, we were not faced with the
State trying to prove its entire case with exhibits that lacked foundational
witnesses. See, e.g., In re B.H., No. 17-1190, 2017 WL 484627 at *3 (Iowa Ct.
App. Oct. 25, 2017) (noting court sustained objections to some exhibits but
“allowed the State to establish the other exhibits’ admissibility during the hearing.”);
In re C.W.N., No. 07-1368, 2007 WL 2965057, at *2–3 (Iowa Ct. App. Oct. 12,
2007) (noting mother’s challenge to the admission of three exhibits); In re J.M., No.
00-1122, 2001 WL 194993, at *6 (Iowa Ct. App. Feb. 28, 2001) (addressing
objection to exhibits offered by guardian ad litem and noting in part that author of
DHS case permanency plans was called as a witness).
6 Also, only two of the State’s exhibits appear to fit under the categories listed in
section 232.96(6).
10
The State defends the court’s exercise of discretion in admitting the relevant
exhibits. First, the State contends “witness testimony presented by the mother
supported the authenticity of the exhibits.” Second, in the State’s view, the court’s
own observations provided “an additional basis beyond the written documents” for
its ruling. In general, “[t]o satisfy the requirement of authenticating or identifying
an item of evidence, the proponent must produce evidence sufficient to support a
finding that the item is what the proponent claims it is.” Iowa R. Evid. 5.901(a)
(emphasis added). The State does not argue that its exhibits were self-
authenticating. See Iowa R. Evid. 5.902 (explaining “self-authenticating”
documents “require no extrinsic evidence of authenticity to be admitted”).
The State’s argument is unconvincing for two reasons. First, the rule
requires the proponent of the exhibit to produce evidence to support authenticity.
See Iowa R. Evid. 5.901(a). Second, the record does not show authentication
occurred through Jessica’s witnesses. For instance, Jessica’s counsel asked DHS
worker Bechtel if she “had a chance to review every exhibit that’s been filed in this
case,” and she answered “no.” It does appear that Bechtel prepared State’s
Exhibit 1, Termination of Parent/Child Relationship: Report to the Court, dated
November 26, 2019.7 And on cross-examination, the State did ask Bechtel about
references in her report. Beyond that, the State made no concerted effort to
authenticate its exhibits through Jessica’s witnesses.
Finally, we are troubled by the State’s reliance on Jessica’s decision to call
the DHS worker because not doing so may have waived her challenge to
7Although the electronic document has signature lines on the last page, neither
Bechtel’s nor her supervisor’s signatures, actual or electronic, appear there.
11
admission of the exhibits. See Long, 313 N.W.2d at 479 ("[A]lthough the social
services report was available to Denise before the adjudicatory hearing, she did
not exercise her right to subpoena any of the third parties whose statements were
included in the report and who were not otherwise called as witnesses by the State.
She therefore cannot complain that her confrontation rights were denied by the
admission of the report."). Although this case does not involve a confrontation
clause challenge, the reasoning in Long could have raised concerns for Jessica.
Shifting burden of proof. The State’s lax approach to proving its petition
and the court’s admission of the electronic exhibits with no foundational witnesses
had the effect of shifting the burden to Jessica to disprove the allegations. Like
any legal proceeding, a termination trial requires the petitioner to offer evidence to
satisfy its burden of proof. Here, the State rested its case before authenticating
the reports offered into evidence. Even if the State is correct in claiming it cured
that deficiency through Jessica’s witnesses, Jessica did not waive her right to
challenge the sufficiency of the State’s evidence in this appeal. Cf. State v. Nino-
Estrada, No. 11-1741, 2012 WL 4513874, at *6 (Iowa Ct. App. Oct. 3, 2012)
(finding no Iowa precedent allowing appellate court to consider evidence presented
by defense to supply missing elements necessary for State to carry its burden of
proof in criminal case). The State must prove a prima facie case for termination
before the parents can be expected to present evidence of their fitness.
Failure to update information. But even if we consider the evidence
developed by the State in cross-examining Jessica’s witnesses, as well as the
judicially noticed CINA file, the record did not support termination when the trial
ended in February. The State must offer clear and convincing evidence that at the
12
present time Jessica’s son H.V. could not be safely returned to her custody. We
interpret “present time” to mean the time of the termination hearing. See In re
D.W., 791 N.W.2d 703, 707 (Iowa 2010). On the hearing’s third day, February 4,
Jessica testified that the DHS last asked her to take a drug test in October 2019.
She acknowledged an addiction to Adderall and expressed a desire to “wean”
herself off that drug. She testified she was tending to her mental-health needs.
Also, she confirmed that she had work and stable housing—a rented apartment in
Altoona. Jessica expressed disappointment that the DHS had cut her visitation
with H.V. to once per week after the January hearing.
The State cross-examined Jessica but offered no updated information from
the DHS or FSRP workers. The most recent DHS report offered by the State was
compiled more than three months earlier. The State also bypassed the opportunity
to file a written closing argument. This record lacks clear and convincing evidence
that H.V. could not be returned to Jessica’s care on the day of the final hearing.8
Contrast In re Z.P., ___ N.W.2d ___, ___, 2020 WL 5268435, at *4 (Iowa 2020)
(upholding termination under paragraph (f) because “record shows a number of
reasons why [father] was not prepared to assume a parenting role at the time of
trial”).
The DHS also had an obligation to continue making reasonable efforts to
reunify the family until the juvenile court issued either a final written termination
order or a waiver. In re L.T., 924 N.W.2d 521, 530 (Iowa 2019). Without any
current evidence from the State, we do not know if the DHS satisfied that
8The order terminating Jessica’s parental rights was not filed until June, four
months after the final hearing and seven months after the final DHS report.
13
obligation. See id. (noting the State must show “reasonable efforts as a part of its
ultimate proof”). On this record, we retain substantial doubts about the State’s
proof and cannot uphold the termination order.
REVERSED AND REMANDED.
Vaitheswaran, P.J., concurs; Schumacher, J., dissents.
14
SCHUMACHER, Judge (dissenting).
Respectfully, I dissent from the majority opinion.
Central to the majority’s opinion reversing termination of the mother’s
parental rights is the State’s election to rest its case after the juvenile court
admitted twenty-one exhibits into the termination file over the mother’s objection.
Because the juvenile court is instructed to admit all relevant and material evidence,
the case managers were available for cross-examination, the juvenile court did not
create a shifting of the burden of proof, and the mother suffered no prejudice,
termination of the mother’s parental rights pursuant to Iowa Code section
232.116(1)(f) (2019) is supported by the record. Additionally, termination was in
H.V.’s best interest, a guardianship was not the preferred permanency option
under the facts of this case, a six-month extension was not warranted, and
reasonable efforts were provided to the mother for a one-year period.
First, critical to this review is the acknowledgment of rights embodied in a
parent-child relationship.
There is no judicial determination which has more drastic
significance than that of permanently severing a natural parent-child
relationship, and it must be scrutinized deliberately and exercised
most cautiously. The right to raise one’s children is a fiercely
guarded right that should be infringed upon only under the most
compelling circumstances. Because the involuntary termination of
parental rights interferes with a fundamental, basic liberty, freedom
from governmental interference with family relationships and child
rearing, courts must strictly adhere to the applicable law, and require
proof by clear and convincing evidence.
146 Am. Jur. Trials § 467 (2016). Finding proof by clear and convincing evidence
in this record concerning then five-year old H.V., the juvenile court order should be
affirmed. Each of the mother’s arguments is addressed in turn.
15
Admission of Exhibits
The mother challenges the admission of the exhibits offered by the State at
the beginning of the proceeding. As noted by the majority, the juvenile court is
guided by Iowa Code section 232.96(6), which states as follows:
A report, study, record, or other writing or an audiotape or videotape
recording made by the department of human services, a juvenile
court officer, a peace officer or a hospital relating to a child in a
proceeding under this division is admissible notwithstanding any
objection to hearsay statements contained in it provided it is relevant
and material and provided its probative value substantially outweighs
the danger of unfair prejudice to the child’s parent, guardian, or
custodian. The circumstances of the making of report, study, record
or other writing or an audiotape or videotape recording, including the
maker’s lack of personal knowledge, may be proved to affect its
weight.
Our juvenile courts are also guided by case law. Overall, juvenile hearings
may be conducted in a more informal manner than other court proceedings. See
In re A.S., 743 N.W.2d 865, 868 (Iowa Ct. App. 2007); see also Iowa Code
§§ 232.99(2) (directing the juvenile court to admit “all relevant and material
evidence” at dispositional hearings); 232.104(1)(c) (stating permanency hearings
should be similarly conducted); see also In re K.F., 437 N.W.2d 559, 563 (Iowa
1989) (stating “evidence properly admissible in an adjudication proceeding should
be accorded the same standard of admissibility in a subsequent termination
hearing”).
At the initiation of the combined termination and permanency hearing, held
on December 10, 2019, January 9, 2020, and February 4, 2020, the State offered
twenty-one exhibits into the termination file.9 Fourteen of the exhibits offered by
9 The State additionally offered exhibits into the underlying child-in-need-of-
assistance file. The mother objected to these exhibits.
16
the State were filed by the mother, including her therapy records, her prescription
for Adderall, and letters of support. None of the exhibits offered contained an
identifying marker or sticker.10 The mother objected to the State’s offer of
exhibits.11
The following exchange occurred between counsel for the mother and the
court after the State’s offer of exhibits:
The Court: Mother’s counsel?
Mother’s Counsel: I guess I would just clarify. Is the State
intending the call the DHS workers to testify?
The State: Not at this point.
Mother’s Counsel: I guess I would ask that they call the DHS
workers to testify. And then I–for efficiency purposes I have no issue
with the exhibits coming in at the beginning through the DHS
workers’ testimony.
The Court: Okay. So in terms of–I think the State gets to
choose who they call as witnesses. Do you have any objection to
the outstanding exhibits?
Mother’s Counsel: I guess I would like to see them come in
through proper foundation through the appropriate witness.
The Court: Okay. So your objection is foundation.
....
The Court: Thank you. And specifically what area of
foundation is lacking on the exhibits of behalf of the mother?
Mother’s Counsel: I think, Your Honor, we would just ask–
obviously we have a fairly lengthy amount of cross-examination for
the DHS workers in this case. And while we can call them as our
witnesses, I feel like that’s almost shifting it to us to present the case.
10 “The clarity of the appellate record benefits by having exhibit stickers on the
electronically submitted exhibits. The exhibits contained in this record do not have
exhibit stickers or other markings indicating the number of the individual exhibits.”
In re N.G., No. 19-1732, 2020 WL 825965, at *1 n.3 (Iowa Ct. App. Feb. 19, 2020).
“Our independent review of the record is decidedly more difficult due to the
absence of exhibit stickers or other identifying markers on the bulk of the exhibits.
It is critical for review of the trial court record that the exhibits contain an identifier
on the exhibit.” In re A.D., No. 19-1459, 2020 WL 105093, at *4 n.7 (Iowa Ct. App.
Jan. 9, 2020). Also, “[i]t is essential for our review that exhibits have some
identifying information.” In re J.W., No. 14-0515, 2014 WL 3749419, at *2 n.1
(Iowa Ct. App. July 30, 2014).
11 The record is not clear as to whether the mother objected to the admission of
her own exhibits through the State’s offer.
17
And I think the State needs to make their burden and–meet their
burden and call the witnesses to testify, and then we would be able
to cross-examination–cross-examine the DHS workers.
The court overruled the objection and allowed counsel for the mother to treat the
DHS witnesses as adverse witnesses.
We review the juvenile court’s decision for an abuse of discretion. In re
C.N., No. 07-0646, 2007 WL 1486139, at *3 (Iowa Ct. App. May 23, 2007). We
consider whether the mother was prejudiced by the juvenile court’s decision. See
In re C.D., 508 N.W.2d 97, 100 (Iowa Ct. App. 1993). The erroneous admission
of evidence will not result in reversal unless the evidence is prejudicial. A.S., 743
N.W.2d at 869. Evidence that is merely cumulative is not prejudicial. Id.Even when, as viewed by the majority, the mother’s objection was purely
an objection to foundation, Iowa Code section 232.96 speaks to this concern. 12
“The circumstances of the making of report, study, record or other writing or an
audiotape or videotape recording, including the maker’s lack of personal
knowledge, may be proved to affect its weight.” Iowa Code § 232.96.
On close review of the objection as to the exhibits, the concern raised by
the mother relates to the ability to cross-examine the DHS worker. The right of
confrontation is derived from the Sixth Amendment, which applies to criminal or
quasi-criminal proceedings. A child in need of assistance is “a special proceeding,
12 “A sustained ‘no foundation’ objection means that the opposing attorney has
failed to establish the prerequisites for introducing evidence. The objection could
refer to failure to lay the foundation for a hearsay exception, failure to authenticate
a writing, or failure to show that the witness has personal knowledge, among
others.” Roger C. Park & Aviva Orenstein, Trial Objections Handbook 2d: No
Foundation § 6:19 (2020).
18
the objective of which is to determine the child’s best interest and welfare.” See In
re Delaney, 185 N.W.2d 726, 728 (Iowa 1971). In Delaney, our supreme court
stated that when certain documentary evidence is furnished in a timely fashion to
opposing counsel, the opposing party has a duty to attempt to secure the desired
witnesses in order to preserve error on the issue. 185 N.W.2d at 732–33.
The precept that emerges from the decision in Delaney is that where the
purpose of confrontation is secured, that is, an opportunity for cross-examination,
the right of confrontation is not violated. Id. at 733. That right was found to be
secured under former sections 232.31 and 232.46, and we find it remains secure
in the present law through the opportunity to show “[t]he circumstances of the
making of the report, study, record or other writing, including the maker’s lack of
personal knowledge . . . .” See Iowa Code § 232.96(6). This right is facilitated not
only by the right to examine the maker of a written document but also by the
statutory right to demand issuance of subpoenas requiring the attendance and
testimony of witnesses and production of papers. This affords a party, such as
H.V’s mother, the right and opportunity to subpoena any witness for examination
or cross-examination, whether that person be the maker of a written document or
one who has given information to the maker.
The Iowa Supreme Court has stated:
Coupled with the right of subpoena is the unrestricted statutory right
of a parent, guardian or custodian to inspect and have disclosed the
contents of pertinent juvenile court records. When exercised, this
right provides ample opportunity to gain information which will aid in
preparing for hearing. Such records should reveal the evidence and
the names of persons whose reports or statements are relied on by
the State to prove its case. Inspection of these records will afford
both a basis for readiness for cross-examining witnesses and for
19
determining the witnesses to be called to rebut the State’s evidence
or to support the contentions of the parent, guardian or custodian.
Hence, the means for confrontation are available to a parent,
guardian or custodian in a CHINA action, and we are thus satisfied
that the opportunity for confrontation is preserved. “The provisions
of chapter 232 seek to retain the advantages of an informal hearing
in juvenile court while providing safeguards which will guarantee
each party his or her fundamental rights to a fair hearing.”
In re Long, 313 N.W.2d 473, 479 (Iowa 1981) (citations omitted).
Our court has previously addressed a similar issue concerning an objection
to “reports prepared and filed in the underlying CINA case because the author did
not testify at the termination hearing.” See In re C.W.N., No. 07-1368, 2007 WL
2965957, at *3 (Iowa Ct. App. Oct. 12, 2007). In such case, our court noted that
Iowa Code section 232.96(6) authorizes the admission of these types of
documents over a hearsay objection. Id. We additionally found that as a
department supervisor, who signed the cover letter accompanying two of the three
exhibits, was present at the termination hearing and available for cross-
examination, such argument should be rejected. Id.In the case In re J.M., a mother objected to exhibits submitted by a guardian
ad litem based on lack of foundation. No. 00-1122, 2001 WL 194993, at *5 (Iowa
Ct. App. Feb. 28, 2001). We found “[t]he admission of these exhibits caused no
surprise or unfair prejudice to [the mother], and they are properly before us.” Id.
at *7. Some of the exhibits had been admitted during the CINA proceedings
without objection. Id. at *6. We noted that for the exhibits created by the Court
Appointed Special Advocate (CASA), the mother was able to call the CASA as a
witness and question her about the exhibits. Id. at *7. We concluded there was
no unfair prejudice to the mother. Id.
20
Furthermore, in In re B.H., a father objected to certain exhibits based on a
lack of foundation. No. 17-1190, 2017 WL 4842527, at *3 (Iowa Ct. App. Oct. 25,
2017). We found that many of the reports the father objected to had been routinely
accepted since the case’s inception. Id. at *4. We also found the father had the
opportunity to testify and challenge the information in the reports. Id. We
concluded the exhibits were not prejudicial because they were cumulative to other
evidence in the record. Id. “Additionally, his attorney was present and able to
zealously cross-examine the witnesses.” Id. We determined there was no abuse
of discretion in the admission of the exhibits. Id.; see also In re J.M., No. 16-1108,
2016 WL 4544382, at *6 (Iowa Ct. App. Aug. 31, 2016) (finding no abuse of
discretion in the admission of exhibits where the exhibits were cumulative, as they
had already been admitted in the CINA proceedings without objection and the court
took judicial notice of the CINA file without objection).
Additionally, this court rejected an objection to foundation, finding that the
exhibits were relevant and not unduly prejudicial. See In re A.H., No. 17-0025,
2017 WL 1278371, at *3 (Iowa Ct. App. Apr. 5, 2017). Finding the admission of
the relevant and material evidence was not in error, the evidence is next reviewed
to determine whether it rises to the level of clear and convincing.
The allowance of the exhibits is also consistent with Harter v. State, 149
N.W.2d 827, 829 (Iowa 1967), in which the court held that
evidence, which under ordinary rules of evidence applicable to a civil
trial would be excluded as hearsay, lacking a proper foundation,
improper opinion evidence, or not the best evidence, is admissible in
[termination] proceedings and the nature of the evidence is to be
considered as it affects its probative value rather than its
admissibility.
21
See also In re H.R.K., 433 N.W.2d 46, 48–49 (Iowa Ct. App. 1988) (quoting Harter,
149 N.W.2d at 829).
Statutory Ground for Termination
Based on the record before our court, I agree with the juvenile court’s
conclusion that clear and convincing evidence supports a finding that the child
could not be returned to mother’s care at the time of the termination hearing. The
mother continued to struggle with substance-abuse and mental-health issues in
the underlying child-in-need-of-assistance case. The mother’s drug test in
December 2018 was positive for methamphetamine. Approximately six months
before the termination hearing, the mother failed to cooperate with drug testing.
Drug test results for the mother in June 2019 were positive for amphetamines and
methamphetamine, although she denied using drugs. In July 2019, the mother
again tested positive for amphetamines and methamphetamine. In August,
September, and October, she tested positive for amphetamines.13 In October
2019, she removed her own sweat patch and threw it way. As noted by the juvenile
court, she has denied any issue with methamphetamine and therefore the issue
remains unaddressed.
Additionally, the mother continued in her relationship with the child’s father,
who has committed domestic abuse against the mother in the child’s presence.
Recordings of jail phone calls between the mother and the father were admitted
without objection, evidencing an ongoing relationship between the two. The
13The DHS worker testified the positive test for amphetamines was anticipated
due to the newly obtained prescription for Adderall.
22
mother additionally acknowledged allowing the father to stay at her house after he
was released from jail.
Six Month Extension Pursuant to Iowa Code section 232.104(2)(b)
The mother also raises an issue concerning the juvenile court’s declination
to grant a six-month extension to achieve reunification. In support of that
argument, the mother points to her testimony that she loves her child and would
do whatever it takes to have him returned to her care. However, her actions since
the inception of the child-in-need-of-assistance case, over a year prior to the
termination hearing, do not support the requested extension.
In order to continue placement for six months, the statute requires the court
to make a determination that the need for removal will no longer exist at the end
of the extension. See Iowa Code § 232.104(2)(b). Under some circumstances,
extensions could be appropriate. In re A.C., 415 N.W.2d 609, 614 (Iowa 1987).
“The judge considering them should however constantly bear in mind that, if the
plan fails, all extended time must be subtracted from an already shortened life for
the children in a better home.” Id.In order to grant a six-month extension, the court must be able to
“enumerate the specific factors, conditions, or expected behavioral changes,”
providing a basis to determine the children will be able to return to the parent at
the end of the additional six months. Iowa Code § 232.104(2)(b). The burden is
not on the State to prove an extension is not appropriate. See id. Rather, the court
needs evidence to support a finding the mother would be able to care for the child
within six months in order to grant an extension. While DHS initially recommended
an extension, this recommendation was changed when the mother threw away her
23
drug test two months prior to the termination hearing. The juvenile court was
unable to make a finding in support of the requested extension in part because of
the mother’s lack of progress, finding the mother could not resume custody in six
months as “the mother has not even started to truthfully address her substance
abuse.”
Notably, H.V. has been involved with DHS since 2014. A founded child
abuse assessment was completed in 2014, naming the mother as the perpetrator
of abuse for the presence of illegal drugs in a child when H.V. was born testing
positive for marijuana. Despite the positive test for marijuana, the mother denied
using marijuana while she was pregnant. A family assessment was completed in
2016. During that assessment, the mother told the investigator the father had
punched her in the forehead while she was holding H.V. and tackled her to the
ground. She also reported that H.V. had been knocked over during the fight. The
father reported the mother kicked him and ripped his sweatshirt. Further services
were not recommended as the father was incarcerated and a no-contact order was
issued. However, the mother later successfully moved to terminate the no-contact
order.
H.V. again came to the attention of DHS when his mother tested positive
for methamphetamine and amphetamines. The mother was named as the
perpetrator of abuse for a second time, with H.V. as the child subject. During this
assessment in late 2018, the mother reported using illegal drugs a month prior.
H.V. was removed from parental custody and adjudicated a child in need of
assistance on November 27, 2018. The mother failed to complete three drug
screens between the filing of the adjudication petition and disposition. Following
24
disposition, H.V. remained out of parental custody. A social history was submitted
to the court at the time of disposition, in which the mother reported the father had
whipped her with a purse strap. Also in the social history, the mother reversed
course on the use of drugs while pregnant, indicating she used marijuana before
she knew she was pregnant. As testified to by DHS, the mother has made little
progress in the case plan due to her “refusal to acknowledge an issue.”
Best-Interests Determination
The mother also argues termination of her parental rights is not in the child’s
best interests. Even if the statutory requirements for termination are met, the
decision to terminate must still be in the best interests of the child. In re N.H., 383
N.W.2d 570, 574 (Iowa 1986); In re D.W.K., 365 N.W.2d 32, 34–35 (Iowa 1985).
The best interests of the child are paramount considerations in determining
whether to terminate parental rights. In re L.L., 459 N.W.2d 489, 493 (Iowa 1990);
N.H., 383 N.W.2d at 574. In assessing the best interests of the child, we evaluate
the child’s long-range as well as immediate interests. In re K.F., 437 N.W.2d 559,
560 (Iowa 1989). We must consider what the future likely holds for the child if
returned to his or her parents. Id. We gain insight into the child’s prospects by
reviewing evidence of the parent’s past performance—for it may be indicative of
the parent’s future capabilities. Id. We give primary consideration to the physical,
mental, and emotional condition and needs of the child. In re J.W.D., 456 N.W.2d
214, 217 (Iowa 1990).
H.V. has a post-traumatic stress diagnosis, stemming from domestic abuse
and drug exposure. He is in a home with a relative who has been able to
demonstrate protective capabilities and provide for H.V. This home is willing to
25
adopt. Bearing in mind the child’s young age and his needs, termination is in his
best interests.
Reasonable Efforts
Additionally, the mother asserts the Iowa Department of Human Services
failed to make reasonable efforts in not requesting a drug test after October 2019
and in not expanding the visitation just prior to the termination hearing. When the
State removes a child from a parent’s care, the State has an obligation to “make
every reasonable effort to return the child to the child’s home as quickly as possible
consistent with the best interests of the child.” In re C.B., 611 N.W.2d 489, 493
(Iowa 2000). In making reasonable efforts, “[a] child’s health and safety shall be
the paramount concern.” Iowa Code § 232.102(12)(a) (defining reasonable
efforts). The State’s duty to make “reasonable efforts is not viewed as a strict
substantive requirement of termination.” C.B., 611 N.W.2d at 493. The State has
the burden to “show reasonable efforts as a part of its ultimate proof the child
cannot be safely returned to the care of a parent.” Id.However, the mother did not request additional services until shortly before
the termination hearing. The efforts of DHS to conduct previous drug screens were
often thwarted by the mother. The last sweat patch, placed at DHS’s request just
shortly before the termination hearing, was thrown away by the mother without
testing. Such does not amount to a denial of reasonable efforts.
With respect to the mother’s request for additional visitation just prior to the
termination hearing, we have previously found the State’s duty to make reasonable
efforts encompasses a visitation arrangement “designed to facilitate reunification
26
while protecting the child from the harm responsible for the removal.” In re M.B.,
553 N.W.2d 343, 345 (Iowa Ct. App. 1996).
Visitation, however, cannot be considered in a vacuum. It is
only one element in what is often a comprehensive, interdependent
approach to reunification. If services directed at removing the risk or
danger responsible for a limited visitation scheme have been
unsuccessful, increased visitation would most likely not be in the
child’s best interests.
Id. The mother’s visitation was initially fully supervised after removal. At a point
in the CINA proceeding, the visitation progresses to semi-supervised. However,
after a positive test for methamphetamine, the visitation reverted to fully
supervised. The juvenile court found that the Department’s actions in that regard
were reasonable, specifically noting the mother’s behavior in the courtroom
inappropriate and that her behavior would be “disturbing for any child to witness.”
The juvenile court further found that H.V. struggled with his mother’s instability,
drama, and addiction. H.V.’s placement was concerned about H.V.’s behavior
after visits with the mother. DHS made reasonable efforts throughout the life of
the case. Any requests for additional efforts just prior to the termination hearing
were addressed appropriately by DHS.
Guardianship as a Permanency Option
Lastly, the mother asserts the district court erred in denying the mother’s
request for establishing a guardianship rather than termination. Although a
guardianship may provide some permanency, it does not necessarily provide
stability for the child. “So long as a parent’s rights remain intact, the parent can
challenge the guardianship and seek return of the child to the parent’s custody.”
In re R.S.R., No. 10-1858, 2011 WL 441680, at *4 (Iowa Ct. App. Feb. 9, 2011).
27
Termination and adoption are the preferred solution when a parent is unable to
regain custody within the time frames of chapter 232. See In re C.K., 558 N.W.2d
170, 174 (Iowa 1997) (“An appropriate determination to terminate a parent-child
relationship is not to be countermanded by the ability and willingness of a family
relative to take the child.”).
H.V. needs permanency in his life, having been out of parental custody for
over a year. The mother continues to have unaddressed substance-abuse issues
because of her denial of use, even when confronted with positive tests. She
continues to have contact with H.V.’s father, despite the history of domestic
violence and his own unaddressed substance-abuse issues. Under these facts, a
guardianship is not the preferred permanency option over termination.
Conclusion
Finding the juvenile court did not err in admitting all relevant and material
evidence, the State met its burden to show that H.V. could not be returned to his
mother’s custody at the time of the termination hearing. Further, termination is in
H.V.’s best interests, reasonable efforts were provided to the mother, guardianship
is not a preferred permanency option for H.V., and a six-month extension was not
warranted. For the above reasons, I respectfully dissent and would affirm the
termination of parental rights pursuant to Iowa Code section 232.116(1)(f).