In the Interest of A.M., Minor Child, A.M., Father, Appellant, J.O., Mother, Appellant, State of Iowa, Appellee.
No. 13-1336.
Supreme Court of Iowa.
Feb. 21, 2014.
MANSFIELD, Justice.
in communicating the specific grounds ue is being challenged, so it is prepared to
for the protest. respond. In my view, the Board lacked
Id. at 330 (emphasis added). jurisdiction to allow an oral amendment to
The Allens’ case is exactly what the MC an untimely petition. See MC Holdings, The Allens’ opinion said that case was not.
Holdings 830 N.W.2d at 332 (Waterman, J., dissent- ing). But, even under the majority‘s hold- ing). They, the Board had discretion to deny the “id. at 330 (emphasis added). jurisdiction to allow an oral amendment to
The Allens “missed a filing deadline” and an untimely petition. See MC Holdings, 830 N.W.2d at 332 (Waterman, J., dissenting). But, even under the majority‘s holding, the Board had discretion to deny the amendment. The Board has made abun- The Allens “missed a filing deadline” and dantly clear that it did not want to permit “filed a late protest.” They never pre- the amendment. It has good reasons for pared a petition to challenge their 2012 declining to permit taxpayers to change valuation. They only appealed the 2011 the year of their protest at the hearing. It valuation (a year too late). Today‘s deci- seems to me to be a pointless exercise to sion does not involve an “inadvertent” cler- remand this case to direct the Board to ical error that misdirected an otherwise exercise its discretion and reach the same timely appeal. result.
Because the Allens missed the filing deadline, the Board was entitled to deny their impromptu request at the hearing to Today’s majority creates an expansively challenge the 2012 assessment for the first lenient standard for tax appeals, brushing time. The district court correctly recog- aside the practical problems such a stan- nized the Board‘s power to deny relief: dard creates. I would enforce the statuto- The [Allens] note that other counties ry requirements as written. There is may be more lenient in their approach nothing unfair about requiring tax protest- to assisting landowners who protest ers to timely file their challenge to a prop- their assessments. While this is likely erty tax assessment the proper year. true, there is no statutory requirement MANSFIELD and ZAGER, JJ., join for county officials to grant such lenien- this dissent. cy. Legally, a landowner bears the full responsibility for making sure that all
statutory requirements are followed in pursuing a protest of a property assess- ment. Although it may be more politi-
“user friendly” and assist citizens in cor- recting defects in documents filed with
the county, it is not legally mandatory. In the Interest of A.M., Minor Child,
If a county office decides to be more A.M., Father, Appellant, proactive in helping a citizen avoid mis- J.O., Mother, Appellant, takes when documents are filed, it does State of Iowa, Appellee. so as a matter of discretionary policy No. 13-1336. and not as a matter of binding legal Supreme Court of Iowa. precedent. Feb. 21, 2014.
102
MANSFIELD, Justice.
We are called upon to review the out- come of a termination of parental rights
proceeding. Acting on the State‘s petition, the juvenile court terminated parental
rights to a one-year-old child under Iowa Code section 232.116(1)(h) (2011). Both
parents appealed. They argued the State had failed to prove the grounds for termi- nation by clear and convincing evidence
and termination was not in the child‘s best
interests. See id. §§ 232.116(1)(h)(4), .116(2). The court of appeals reversed the
juvenile court.
Upon further review, we now vacate the decision of the court of appeals and rein- state the order of the juvenile court. We
find clear and convincing evidence that the child could not safely be returned to her
parents’ custody and also conclude that termination was in the child‘s best inter- ests.
I. Facts and Procedural History.
Jessica and Allen are the parents of A.M., a one-year-old girl born in February
2012. While Jessica and A.M. were still in the hospital following A.M.‘s birth, the hos- pital staff expressed concerns about the
couple‘s ability to care for A.M. Specifical- ly, the staff worried about Jessica‘s lack of Mark D. Fisher of Nidey Erdahl Tindal interest in feeding the baby. They noted a & Fisher, PLC, Cedar Rapids, for appel- number of incidents where Jessica either lant father. did not feed the baby when urged to by
Wayne Eric Nelson, Assistant Public staff or went extended periods of time Defender, Cedar Rapids, for appellant without feeding the baby. Hospital staff mother. indicated Jessica needed “regular remind- ers to feed the baby” and noted Jessica Thomas J. Miller, Attorney General, repeatedly requested the nursing staff Janet L. Hoffman, Assistant Attorney feed the baby for her so that she could eat, General, and Lance J. Heeren, Assistant sleep, or take a shower. County Attorney, for appellee State.
Jessica‘s behavior also raised concerns
Jessica L. Wiebrand, Cedar Rapids, for about her mental stability. Staff indicated intervenors maternal grandparents. they found her crying in her room, and she
Cory J. Goldensoph, Cedar Rapids, for was observed to be “very anxious and minor child. rocking in her
past relationships, history of depression, family care because her parents had “not
and past suicidal thoughts. Her social demonstrated consistent ability to care for
worker later reported that Jessica was not an infant during hospitalization.” The
taking her medications at the time. court added, “The parents’ mental health
Additionally, the hospital staff had con- and cognitive status is likely a barrier to the cerns about Allen. Although he had been them safely caring for the child and fur- prescribed medication for his Tourette‘s ther evaluation needs to occur.” Jessica for
syndrome, he was not taking it. The nurs- and Allen were ordered to complete psy- es expressed concerns about Allen‘s “abili- chological and psychiatric evaluations and ty to the safe[l]ly hold and care for the baby.” were granted visitation with A.M.
At the time of A.M.‘s birth, the depart- Thereafter, Jessica‘s parents, i.e., A.M.‘s
ment of human services (DHS) was al- maternal grandparents, filed a petition to ready involved with Jessica‘s two older intervene. They asked to be considered as
children, S.O. (born 2005) and A.L. (born a placement option for A.M. Their request 2009).1 Both children had been adjudicat- for intervention was granted.
A final pretrial conference on the CINA
2009 and removed from Jessica‘s care in petition took place in early April 2012. 2011. S.O. had been placed in foster care, Jessica and the guardian ad litem (GAL)
and A.L. had been placed with his father full-time. stipulated to A.M.‘s being adjudicated a
Just two days after A.M.‘s birth, the CINA and to her placement in foster care. juvenile court granted the State‘s request Allen, however, resisted the petition. The for the temporary removal of A.M. from juvenile court adjudicated A.M. as a CINA Jessica and Allen‘s custody. The State vis-a-vis mother and child. The court filed a CINA petition the same day. The found it was not in A.M.‘s best interests to petition alleged A.M. was a CINA under remain with Jessica because “the hospital Iowa Code sections 232.2(6)(c)(2) (where reported issues with the parents’ ability to the child “has suffered or is imminently provide basic care to an infant,” Jessica‘s likely to suffer harmful effects as a result mental health was not stable, and there of ... [t]he failure of the child‘s parent ... was “no further in-home or community to exercise a reasonable degree of care in based service which would alleviate the supervising the child“) and 232.2(6)(n). need for out-of-home placement.” The court found foster family care was the A CINA hearing with regard to Allen “least restrictive placement in the child‘s occurred on April 24. The court noted best interests.” that, although a paternity test had been A removal hearing was held a few days ordered on April 14, Allen had “not yet later. At that time, Jessica stipulated to established paternity” of A.M.2 the continued separation of A.M. from her The court further commented: care. Allen did not appear. The court ordered DHS‘s custody of A.M. to continue
“Jessica has agreed that foster family- she was expected to be returned within six
care is necessary at this time for [A.M.]. months.
[Allen] does not agree and believes that
[Jessica] knows how to care for a child An in-court review was scheduled for but that her maturity and behavior are July 20. DHS presented a progress re- really the issue. [Allen] acknowledges port to the court and recommended A.M. that he is an inexperienced parent, but continue in foster family care. Jessica and he is willing to learn. Observations of Allen had secured an apartment but con- the professionals involved are that [Al- tinued to struggle financially as Allen had len] is cooperative but not always atten- lost his job and Jessica was not making tive to the child during his visits and enough money to meet them needs. The that it is likely to take significant repeti- couple were relying on general assistance tion and reinforcement for [Allen] to to pay their rent. In addition, Jessica and develop the skills necessary to care for Allen were “not providing for [A.M.]‘s an infant. [Allen] acknowledges that he tangible needs during visits and ha[d] to has some issue with anger management rely on supplies from the foster parents.” and that he is not currently taking medi- The couple had missed a scheduled visit cation for Tourette‘s Syndrome that has with all three children when they spent a been prescribed. He is willing to do so day at the beach with their friends. They but has not yet appointment necessary did not call or notify the provider‘s or scheduled the for him to obtain the A.M.‘s foster parents that they would not medication. and are cur- be home for the visit. Jessica and Allen‘s rently residing with friends and plan to visits with all three children remained fully move into an apartment in approximate- supervised “due to concerns from provid- ly two weeks. Their income is not sta- ers that they are not able to supervise all ble and there is concern as to whether three children and meet their needs appro- they will be able to financially maintain priately.” However, DHS requested the independent housing. For most of the couple begin semisupervised visitation for past year they have resided with differ- A.M.‘s solo visits and the court agreed to ent family members. the request.
The juvenile court thus found the State Another progress report was presented had met its burden of establishing A.M. to the court before the September 28 re- was a CINA under Iowa Code sections view. It indicated Jessica and Allen‘s 232.2(6)(c)(2) and 232.2(6)(n). Custody of financial troubles continued even though A.M. was continued with DHS for foster Allen had secured part-time employment. family care placement. Jessica and Allen Their rent for July and August had been were allowed supervised visitation with paid by general assistance. Despite this, A.M. three times per week, and DHS was the couple had not managed to save money given discretion to increase visitation to for September‘s rent and were behind on semisupervised “if deemed appropriate.” that payment. While Jessica and Allen A case permanency plan was developed continued to maintain a safe and clean by DHS and submitted to the juvenile apartment, their financial problems raised court on May 23. The stated goal for A.M. concerns about how long the couple could was to “return child to mother‘s home.” stay there. Allen could not afford his The plan indicated there was a good prog- medication. Jessica and Allen continued nosis for returning A.M. to her home, and to rely on the foster parents to provide the plan also showed she was expected basic supplies for A.M.‘s visits.3 to return to her home in six months; the
Jessica has agreed that foster family she was expected to be returned within six
care is necessary at this time for [A.M.]. months.
[Allen] does not agree and believes that
[Jessica] knows how to care for a child An in-court review was scheduled for but that her maturity and behavior are July 20. DHS presented a progress re- really the issue. [Allen] acknowledges port to the court and recommended A.M. that he is an inexperienced parent, but continue in foster family care. Jessica and he is willing to learn. Observations of Allen had secured an apartment but con- the professionals involved are that [Al- tinued to struggle financially as Allen had len] is cooperative but not always atten- lost his job and Jessica was not making tive to the child during his visits and enough money to meet their needs. The that it is likely to take significant repeti- couple were relying on general assistance tion and reinforcement for [Allen] to to pay their rent. In addition, Jessica and develop the skills necessary to care for Allen were “not providing for [A.M.]‘s an infant. [Allen] acknowledges that he tangible needs during visits and ha[d] to has some issue with anger management rely on supplies from the foster parents.” and that he is not currently taking medi- The couple had missed a scheduled visit cation for Tourette‘s Syndrome that has with all three children when they spent a been prescribed. He is willing to do so day at the beach with their friends. They but has not yet scheduled the appoint- did not call or notify the provider‘s or scheduled the ment necessary for him to obtain the A.M.‘s foster parents that they would not medication. [Allen] and [Jessica] are cur- be home for the visit. Jessica and Allen‘s rently residing with friends and plan to visits with all three children remained fully move into an apartment in approximate- supervised “due to concerns from provid- ly two weeks. Their income is not sta- ers that they are not able to supervise all ble and there is concern as to whether three children and meet their needs appro- they will be able to financially maintain priately.” However, DHS requested the independent housing. For most of the couple begin semisupervised visitation for past year they have resided with differ- A.M.‘s solo visits and the court agreed to ent family members. the request.
The juvenile court thus found the State Another progress report was presented had met its burden of establishing A.M. to the court before the September 28 re- was a CINA under Iowa Code sections view. It indicated Jessica and Allen‘s 232.2(6)(c)(2) and 232.2(6)(n). Custody of financial troubles continued even though A.M. was continued with DHS for foster Allen had secured part-time employment. family care placement. Jessica and Allen Their rent for July and August had been were allowed supervised visitation with paid by general assistance. Despite this, A.M. three times per week, and DHS was the couple had not managed to save money given discretion to increase visitation to for September‘s rent and were behind on semisupervised “if deemed appropriate.” that payment. While Jessica and Allen A case permanency plan was developed continued to maintain a safe and clean by DHS and submitted to the juvenile apartment, their financial problems raised court on May 23. The stated goal for A.M. concerns about how long the couple could was to “return child to mother‘s home.” stay there. Allen could not afford his The plan indicated there was a good prog- medication. Jessica and Allen continued nosis for returning A.M. to her home, and to rely on the foster parents to provide the plan indicated there was a good prog- basic supplies for A.M.‘s visits.3 On one nosis for returning A.M. to her home, and occasion, Jessica and Allen had feuded. the plan indicated she was expected to be This led Allen to ride his bicycle on the returned within six months. interstate highway in the direction of his
parents’ home, until he was stopped by
police. This led Allen to ride his bicycle on the interstate highway in the direction of his
parents’ home, until he was stopped by there had also been continued issues with
police. A.M.‘s feeding. On one occasion, the par- Additionally, Allen had been sleeping ents fed A.M. bananas even though they during the semisupervised visits with A.M. had been instructed not to because she because of his overnight work schedule at was constipated; another time, the parents his new job. Allen originally denied this overfed her; another time they fed her to the service provider who confronted him less than the amount she was supposed to on the issue, but later admitted he had be- receive; and on another occasion, the par- been asleep. DHS stressed that Allen ents forgot to give A.M. her morning bot- “needs to be awake and alert during visits tle. • with them.” with [A.M.] in order to improve his parent- Based on testing completed by Jessica ing and assure A.M.‘s safety.” and Allen, DHS concluded “both parents Additionally, when the maternal grand- are capable of meeting the basic needs of mother offered extra visits with A.M. and the children but may need assistance with S.O. during the holidays, Jessica and Allen more complex needs such as discipline and refused the opportunity because Allen‘s decision making.” Jessica‘s psychological mother was not allowed to attend. DHS testing revealed that she had borderline concluded such decisions made it “appar- adult intellectual functioning. Allen‘s test- ent that the parents allow other desires to ing indicated he was in the lower side of come before the expectations they need to the normal range of adult functioning. meet in order to have the children re- The evaluator noted Allen was “capable of turned home.” learning things, but he probably will do so
best with a hands-on approach and dealing The final progress report prior to the
with things in a very concrete sort of way.” termination hearing was prepared in late DHS concluded that Jessica and Allen had February and presented to the court in made progress, but recommended that early March. The DHS caseworker noted A.M. continue to reside with her foster that during one of the three-child visits, family.
Over the next few months, additional Jessica and Allen had tried to feed the issues arose with Jessica‘s and Allen‘s par- older children an entire meal consisting of enting. Visits with all three children had an iceberg lettuce salad, which they had progressed to semisupervised during the refused. The worker informed Jessica and month of November, and in that same Allen that this was “comparable to feeding
month, A.M. was placed in relative care the children a bottle of water for dinner as with her maternal grandparents (S.O. had iceberg lettuce has no nutritional value and already been placed in their care). How- they were not adding any additional ele- ever, service providers noted Jessica was ments to the salad.” Shortly thereafter, “struggling to accept feedback from pro- the parents gave the older children too viders,” and she was “getting frustrated much to eat as each of them received two and shutting down.” She had “not been as full-size hot dogs, six chicken nuggets, and receptive to accept alternate parenting ad- french fries. Additionally, Jessica and Al- vice when it appear[ed] that things that len suddenly notified DHS that the land- worked with [her older children were] not lord of their one-bedroom apartment working with [A.M.].”
The report presented to the juvenile would only let them have one child with court for the November review concluded, them, who had to be under the age of five. “The children (A.M. and S.O.) are in need The couple had just signed a six-month of permanency and it is unclear if granting lease they were unwilling to break. De- more time to the parents will result in spite the longtime reunification efforts for enough progress to place the children back S.O., this meant S.O. could not reside with with them.”
self-medicate foretold he might not be able there had also been continued issues with
to properly administer medication to the A.M.‘s feeding. On one occasion, the par- children if necessary. ents fed A.M. bananas even though they The report presented to the juvenile had been instructed not to because she court for the November review concluded, was constipated; another time, the parents “The children (A.M. and S.O.) are in need overfed her; another time they fed her of permanency and it is unclear if granting less than the amount she was supposed to more time to the parents will result in receive; and on another occasion, the par- enough progress to place the children back ents forgot to give A.M. her morning bot- with them.” tle.
On December 28, the State filed a peti- Additionally, when the maternal grand- tion for the termination of Jessica‘s and mother offered extra visits with A.M. and Allen‘s parental rights to A.M. and Jessi- S.O. during the holidays, Jessica and Allen ca‘s parental rights to S.O. According to refused the opportunity because Allen‘s the supporting affidavit from the DHS mother was not allowed to attend. DHS caseworker, the GAL supported termi- concluded such decisions made it “appar- nation of parental rights. The affidavit ent that the parents allow other desires to further indicated that A.M.‘s maternal come before the expectations they need to grandparents were working to obtain a meet in order to have the children re- foster care and adoptive license so they turned home.” might seek the permanent placement of The final progress report prior to the A.M. and S.O. with them. The affidavit termination hearing was prepared in late also outlined the case plan expectations for February and presented to the court in Jessica and Allen and indicated that both early March. The DHS caseworker noted had failed to meet most of the expectations that during one of the three-child visits, set out for them. The affidavit concluded, Jessica and Allen had tried to feed the “While Jessica and Allen appear to be older children an entire meal consisting of making progress, the children are in des- an iceberg lettuce salad, which they had perate need of permanency. Therefore, it refused. The worker informed Jessica and is the recommendation of the Department Allen that this was “comparable to feeding of Human Services that parental rights be the children a bottle of water for dinner as terminated.... Without objection from iceberg lettuce has no nutritional value and any party, the maternal grandparents they were not adding any additional ele- were permitted to intervene in the termi- ments to the salad.” Shortly thereafter, nation proceeding. the parents gave the older children too
Another progress report was presented much to eat as each of them received two to the court in January 2013, and no full-size hot dogs, six chicken nuggets, and change in visitation was recommended. french fries. Additionally, Jessica and Al- Allen had reportedly shown signs of physi- len suddenly notified DHS that the land- cal aggression towards objects. He got lord of their one-bedroom apartment angry and broke his phone and “did other would only let them have one child with destructive things to items in the home.” them, who had to be under the age of five. Allen also admitted he had driven Jessica‘s The couple had just signed a six-month car even though he did not have a driver‘s lease they were unwilling to break. De- license, and there was no insurance cover- spite the longtime reunification efforts for age for the vehicle. During December S.O., this meant S.O. could not reside with
Jessica and Allen, regardless of the out- point which he could properly care for
come of the termination hearing. DHS [A.M.], but I just don‘t think he is quite stated the couple “continue to have diffi- there yet.”
culty with meeting case plan expectations On March 6, the termination of parental
and understanding the severity of their rights trial was held. Jessica consented to
choices with regard to their parental the termination of her rights to S.O., but rights.” In summary, DHS said that Jes- both Allen and Jessica opposed the termi- sica and Allen seem to have hit a plateau nation of their parental rights to A.M. where their capabilities as parents may not Three service providers and the DHS allow them to make further progress. The caseworker testified that they believed ter- children have been out of the home for a mination of Jessica‘s and Allen‘s parental significant period of time and are in rights was warranted. Each doubted the need of permanency. It is obvious that couple‘s ability to care for the needs of Jessica and Allen love and care for the A.M. Concerns were voiced about their children but it is also becoming very ability to adequately supervise A.M., even clear that it is not in the long-term best when she was the only child they were interest of [S.O.] and [A.M.] to be re- caring for, and their ability to grasp and turned to their care. Allen and Jessica internalize the basic skills required to care do not appear to have the functional for a young child. The witnesses testified skills at this time to take on the fulltime that a strong bond existed between the care of two or even just one child. parents and A.M., the parents loved and The report concluded with DHS‘s recom- wanted to care for A.M., and both Jessica mendation that the parental rights be ter- and Allen participated in the many pro- minated to allow the children to be grams and services offered to them. How- adopted.5 ever, these same witnesses expressed con- cern that sufficient progress had not been
made and that additional programs and At the in-court review on March 5, the
services were not reasonably likely to pre- court received the report of the GAL, pare Jessica and Allen to care for A.M. in which it made part of the record. In his a timeframe that met A.M.‘s need for per- report, the GAL stated, “Jessica and Allen manency. continue to struggle in this case with achieving the skills needed to be able to This view, shared by all the service pro- provide basic care for their children.” He viders who testified, was reflected in the did not think the parents were prepared to testimony of the DHS caseworker: have A.M. back in their home. In the I think that Jessica and Allen could po- GAL‘s view, despite years of services, Jes- tentially, with more time, be able to have sica had not “come far enough to be able the kids returned to them. However, to properly care for [A.M.].” Regarding we have a legal obligation to address Allen, the GAL opined that he was trying permanency for the amount of time that and that “if he was given perhaps six the kids have been out of the home, and months to a year more, he would be at a that obligation doesn‘t really afford us point which he could properly care for the able the child to return safely home.” Howev- [A.M.], but I just don‘t think he is quite er, this was clearly no longer DHS‘s recom- there yet.” mendation as of February 2013. The child The report thus concluded A.M. could placement plan appears to have been a carry- not be returned to the care of her parents at over that DHS had simply failed to update. the time of the hearing. We find clear and convincing evidence that grounds for ter- mination of Jessica‘s and Allen‘s parental
109
the opportunity to give them more time Q: Do you think that‘s necessary?
regardless of them being lower function- A: Honestly, no, but if it helps then I ing and some of the needs that they can‘t back down from just free help. have.
None of the service providers believed that However, on cross-examination, he seemed Jessica and Allen could safely and ade- to indicate services would be necessary in quately care for A.M. if she was returned order to properly care for A.M.: to them at the time of the trial. While Q: What do you think you guys need some of the witnesses thought the couple in order to have [A.M.] in your care? A: might be able to care for A.M. in time, Well, nobody is a perfect parent, but if I none believed that they could care for had [A.M.] in my care, I could be a little A.M. without requiring additional services bit more help as we progress over the for the foreseeable future. year. As I said, I‘m a new father and I Both Jessica and Allen testified that still have a lot to learn. they thought they could care for A.M. However, Jessica agreed that more ser- Q: So in your opinion you feel [A.M.] vices would be necessary for them to do so, could be returned to you and Jessica‘s and Allen agreed that services would be care today as long as you had someone helpful. On the stand, Jessica testified as still coming to the home to help you out? follows: A: Yes. Q: What do you feel that you would
need in order to have [A.M.] in your Q: And how frequently would this care full-time? A: I know I have talked person have to come to your house? A: with the worker about—named Wanda, It depends. I don‘t know exactly how we talked about she feels that we could well we will do. I know we are good take care of her as long as we have like parents, we do take care of her and her a worker there to guide us, help us a needs are met, but I do need a crib and little bit, being supportive about what I need baby gates, but we do keep an we are doing and go on from there. eye on her. But it depends on how they Q: So you think you would still need come out, we will have to schedule, I some drop-ins? A: Yes. guess. Q: And what do you think the drop- Q: Would you want this person to ins would do for you? A: A little bit for come at least once a day? A: Once a parenting, like if we need—like anything day, probably twice.... that we need from them, we can always
ask them. If we need any other ser- On redirect, Allen again indicated he vices that they want us to have. thought services were desirable, but not Allen testified on direct examination that necessary: the couple did not need services but would Q: [Y]ou mentioned that you want to accept them: have someone come once a day or once Q: Would you voluntarily participate every other day. Do you think that in [parenting instruction] if [A.M.] were would be necessary for the return of the returned to your care? A: Yes. child, or just something you‘d want? A: Q: And would you agree to have ran- It‘s not necessary, but just to be on the dom drop-ins if [A.M.] was returned to safe side, you know, to help things out a your care? A: If it helps out, yes. little bit. I can see something like that
happening, but it‘s not something that I Services would need to provide signifi- believe in having. cant oversight for into the foreseeable
Q: So you would like it, but ... you future to assure the child‘s health and don‘t think it‘s absolutely necessary? A: safety. Allen and Jessica clearly love Yeah. [A.M.] and want to maintain their role as
The couple had never advanced beyond parents. The couple had never advanced semisupervised visitation with A.M. after beyond semisupervised visitation with A.M. nearly a year of services. They had re- after nearly a year of services. They had re- ceived support from numerous service pro- ceived support from numerous service pro- viders: mental health services and medi- viders: mental health services and medi- cation management from the Abbe Center cation management from the Abbe Center Mental Health and Development Dis- and Mental Health and Development Dis- abilities; parenting classes from Young abilities; parenting classes from Young Parents Network; budgeting assistance Parents Network; budgeting assistance from Horizons; visitation, supervised visitation, from Horizons; supervised visitation, drop-in services, parenting support, and drop-in services, parenting support, and assistance with meeting case goals from assistance with meeting case goals from Tanager Place and Linn County Home Tanager Place and Linn County Home Health; monthly mentoring from a Parent Health; monthly mentoring from a Parent Partner; testing from the University of Partner; testing from the University of Iowa; and monthly Family Team meetings Iowa; and monthly Family Team meetings with all of the service providers to discuss with all of the service providers to discuss progress, areas in need of improvement, progress, areas in need of improvement, and overall goals. and overall goals.
On August 13, the juvenile court entered an order terminating Jessica‘s and Allen‘s parental rights to A.M. pursuant to Iowa
section 232.116(1)(h).6 The court
also terminated Jessica‘s parental rights to
S.O. Among other things, with respect to A.M., the court noted the following:
Jessica and Allen would like to re- sume care of [A.M.]. They have made
efforts to do so. Unfortunately, they continue to lack the skills and ability to care for a child on a consistent, full-time basis. This is not likely to change in the reasonably near future, even with ser- vices. For [A.M.] to safely reside with
her parents, the Department of Human
self-medicate foretold he might not be able there had also been continued issues with
to properly administer medication to the A.M.‘s feeding. On one occasion, the par- children if necessary. ents fed A.M. bananas even though they The report presented to the juvenile had been instructed not to because she court for the November review concluded, was constipated; another time, the parents “The children (A.M. and S.O.) are in need overfed her; another time they fed her of permanency and it is unclear if granting less than the amount she was supposed to more time to the parents will result in receive; and on another occasion, the par- enough progress to place the children back ents forgot to give A.M. her morning bot- with them.” tle.
nor father can internalize the necessary rights were established under Iowa Code
skills to keep A.M. safe and developing section 232.116(1)(h).
properly without the hovering supervision B. Best Interests of the Child.
of DHS workers.” “Even after we have determined that stat- We agree with the court of appeals ma- utory grounds for termination exist, we jority that some of the individual incidents must still determine whether termination cited by DHS may seem trivial and other is in the children‘s best interests.” In re concerns may appear to be nebulous. Yet A.B., 815 N.W.2d 764, 776 (Iowa 2012); this evidence needs to be put in the appro- accord Iowa Code § 232.116(2). We “give priate context. The only opportunity for primary consideration to the child‘s safety, evaluating Jessica‘s and Allen‘s parenting the best placement for furthering the came during the supervised and semisu- long-term nurturing and growth of the pervised visits, because the couple never child, and to the physical, mental, and progressed to a trial period with A.M. at emotional condition and needs of the home. Thus, inferences had to be drawn child.” Iowa Code § 232.116(2); accord In as to how safe A.M. would be with Jessica re P.L., 778 N.W.2d at 40. “It is well- and Allen based upon limited data points. settled law that we cannot deprive a child When Jessica and Allen demonstrated of permanency after the State has proved through their own behavior that taking a ground for termination under section prescribed medications regularly was not 232.116(1) by hoping someday a parent will always a personal priority, this naturally learn to be a parent and be able to provide led to the inference they might not admin- a stable home for the child.” Id. Taking ister A.M.‘s medications regularly. It is into account these factors, we conclude significant to us that neither the third- termination is in A.M.‘s best interests. party service providers nor the GAL be- The record shows that A.M. is adopta- lieved A.M. could be safely returned to her ble, is doing well in the care of her mater- parents at the time of trial. nal grandparents, and has formed a bond The juvenile court‘s comments on the with them. At the time of trial, the parents’ abilities appropriately summarize grandparents had received their foster our concerns: care license and were under consideration Very little sustained progress has been as the adoptive placement for A.M. and made in addressing the issues which led S.O. See In re D.W., 791 N.W.2d at 709 to the children‘s removal. The parents (citing the child‘s preadoptive placement have made effort and have, at times, as a factor favoring termination under sec- shown progress in attaining the neces- tion 232.116(2)). Additionally, by remain- sary skills and abilities. However, they ing in the care of her grandparents, A.M. have not shown the ability to retain can continue to develop the close bond she those skills or to transfer the learned has formed with her half-brother, S.O. skills to new situations which occur as Furthermore, the maternal grandmother the children develop. stated that she intends to allow the par- The record thus shows A.M. could not ents to continue a relationship with A.M. be returned to the care of her parents at if the child is permanently placed in the the time of the hearing. We find clear and grandparents’ home. Also, she expressed convincing evidence that grounds for ter- a willingness to work with A.L.‘s father to mination of Jessica‘s and Allen‘s parental ensure that A.M. continues to have a rela- tionship with her other half-brother.
nor father can internalize the necessary rights were established under Iowa Code
skills to keep A.M. safe and developing section 232.116(1)(h).
properly without the hovering supervision B. Best Interests of the Child.
of DHS workers.” “Even after we have determined that stat- We agree with the court of appeals ma- utory grounds for termination exist, we jority that some of the individual incidents must still determine whether termination cited by DHS may seem trivial and other is in the children‘s best interests.” In re concerns may appear to be nebulous. Yet A.B., 815 N.W.2d 764, 776 (Iowa 2012); this evidence needs to be put in the appro- accord Iowa Code § 232.116(2). We “give priate context. The only opportunity for primary consideration to the child‘s safety, evaluating Jessica‘s and Allen‘s parenting the best placement for furthering the came during the supervised and semisu- long-term nurturing and growth of the pervised visits, because the couple never child, and to the physical, mental, and progressed to a trial period with A.M. at emotional condition and needs of the home. Thus, inferences had to be drawn child.” Iowa Code § 232.116(2); accord In as to how safe A.M. would be with Jessica re P.L., 778 N.W.2d at 40. “It is well- and Allen based upon limited data points. settled law that we cannot deprive a child When Jessica and Allen demonstrated of permanency after the State has proved through their own behavior that taking a ground for termination under section prescribed medications regularly was not 232.116(1) by hoping someday a parent will always a personal priority, this naturally learn to be a parent and be able to provide led to the inference they might not admin- a stable home for the child.” Id. Taking ister A.M.‘s medications regularly. It is into account these factors, we conclude significant to us that neither the third- termination is in A.M.‘s best interests. party service providers nor the GAL be- The record shows that A.M. is adopta- lieved A.M. could be safely returned to her ble, is doing well in the care of her mater- parents at the time of trial. nal grandparents, and has formed a bond The juvenile court‘s comments on the with them. At the time of trial, the parents’ abilities appropriately summarize grandparents had received their foster our concerns: care license and were under consideration Very little sustained progress has been as the adoptive placement for A.M. and made in addressing the issues which led S.O. See In re D.W., 791 N.W.2d at 709 to the children‘s removal. The parents (citing the child‘s preadoptive placement have made effort and have, at times, as a factor favoring termination under sec- shown progress in attaining the neces- tion 232.116(2)). Additionally, by remain- sary skills and abilities. However, they ing in the care of her grandparents, A.M. have not shown the ability to retain can continue to develop the close bond she those skills or to transfer the learned has formed with her half-brother, S.O. skills to new situations which occur as Furthermore, the maternal grandmother the children develop. stated that she intends to allow the par- The record thus shows A.M. could not ents to continue a relationship with A.M. be returned to the care of her parents at if the child is permanently placed in the the time of the hearing. We find clear and grandparents’ home. Also, she expressed convincing evidence that grounds for ter- a willingness to work with A.L.‘s father to mination of Jessica‘s and Allen‘s parental ensure that A.M. continues to have a rela- tionship with her other half-brother.
113
A.M. has never been in the full-time The juvenile court found “none of the
care of either parent. She was removed exceptions to termination as set out in
from their custody before she ever left the section 232.116(3)” applied to this case.
hospital and has spent her entire life in the We agree. Although section 232.116(3)(a)
care of a foster family and then her mater- allows the juvenile court not to terminate nal grandparents. She has never had a when a “relative has legal custody of the permanent home. Termination will enable child,” Iowa Code § 232.116(3)(a.), A.M. is her to achieve permanency. See In re not in the legal custody of her grandpar- J.E., 723 N.W.2d 793, 802 (Iowa 2006) ents. And, while section 232.116(3)(c) al- (Cady, J., concurring specially) (noting the “tlow the juvenile court not to terminate “defining elements in a child‘s best inter- when “[t]here is clear and convincing evi- est” are the child‘s safety and her “need dence that the termination would be detri- for a permanent home“). We agree with mental to the child at the time due to the the juvenile court that termination is in closeness of the parent-child relationship,” A.M.‘s best interests. See In re D.W., 791 we are not persuaded this is such a case. N.W.2d at 707 (“We do not gamble with Id. § 232.116(3)(c). A.M. was just over a the children‘s future by asking them to year old at the time of trial, and the record continuously wait for a stable biological indicates she also has a close bond to her parent, particularly at such tender ages.” maternal grandparents, with whom she (Internal quotation marks omitted.)). has spent much more time.
C. Potential Grounds Not to IV. Conclusion.
Terminate. Section 232.116(3) provides For the foregoing reasons, we vacate the that “[t]he court need not terminate the decision of the court of appeals and affirm relationship between the parent and child” the juvenile court‘s order terminating Jes- under certain circumstances. Iowa Code sica‘s and Allen‘s parental rights to A.M. § 232.116(3). A finding under subsection 3 allows the court not to terminate. See COURT OF APPEALS DECISION In re P.L., 778 N.W.2d at 39. “The factors VACATED; JUVENILE COURT OR- weighing against termination in section DER AFFIRMED. 232.116(3) are permissive, not mandatory,” and the court may use its 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 relation- ship.” In re D.S., 806 N.W.2d 458, 474-75 (Iowa Ct.App.2011).
MANSFIELD and ZAGER, JJ., join this dissent.