IN the INTEREST OF C.F.-H., Minor Child, C.H., Father, Appellant.
No. 16-0918
Supreme Court of Iowa.
December 16, 2016
Rehearing Denied February 10, 2017
201
Thomas J. Miller, Attorney General, Kathryn K. Lang, Assistant Attorney General, and Lori Kolpin, Assistant County Attorney, for appellee.
Tisha M. Halverson of Klay, Veldhuizen, Bindner, DeJong, Halverson & Winterfeld, PLC, Paullina, for minor child.
APPEL, Justice.
In this case, we are asked to consider when a child has been “removed from the physical care” of parents for at least twelve of the last eighteen months, thereby establishing a necessary element for termination of parental rights under
I. Factual and Procedural Background.
The child in this case, C.F.-H., was born in 2007. The mother and father were never married. Prior to November 2012, no custodial order existed for C.F.-H.
In 2011, the Iowa Department of Human Services (DHS) investigated an incident of domestic violence involving the mother and the father. As a result of the investigation, DHS made a founded child abuse assessment against the father. The parents participated in voluntary services after which the case was closed in June 2012.
In August, DHS investigated a second incident of domestic violence involving the parents. This time, the investigation resulted in DHS making a founded child abuse assessment against both parents.
In November, the juvenile court adjudicated C.F.-H. a child in need of assistance under
The district court agreed that C.F.-H. was a child in need of assistance on November 30, 2012. The district court order placed C.F.-H. in the physical custody of the mother under the supervision of DHS and granted the father visitation rights at the discretion of DHS. In December, the district court continued custody of the child with the mother with visitation for the father.
In June 2013, the mother moved for concurrent jurisdiction in order to obtain a permanent custodial order with respect to C.F.-H. The juvenile court granted the motion. On June 23, 2014, the district court ordered temporary joint legal custody of C.F.-H. On March 4, 2015, the district court entered a final decree of custody, granting joint legal custody to both parents. Primary physical care was placed with the mother and visitation with the father.
In a report filed on August 10, DHS filed a request to dismiss further juvenile court proceedings. DHS later rescinded the recommendation, however, but the father moved the district court to dismiss the proceedings. The juvenile court denied the dismissal on October 9.
In February 2016, DHS filed a petition to terminate the father‘s parental rights. After a hearing, the district court entered an order terminating the father‘s parental rights under
The court of appeals affirmed the district court. The father sought further review, which we granted. For the reasons expressed below, we now reverse the decision of the district court.
II. Standard of Review.
We review issues of statutory construction for correction of errors at law. In re J.C., 857 N.W.2d 495, 500 (Iowa 2014); In re G.J.A., 547 N.W.2d 3, 5 (Iowa 1996). We are required to construe provisions in
III. Discussion.
A. Relevant Statutory Provisions.
We begin with a review of the relevant statutory provisions.
1. Provisions related to removal.
Any order entered under
Upon a hearing, the court may remove the child from the home.
The juvenile court is generally required to make removal determinations on a case-by-case basis, with the grounds explicitly documented and stated in the court‘s order.
Similarly, the juvenile court is required to make findings on a case-by-case basis with the exception of situations involving a threat of imminent harm to the child.
2. Provisions related to termination.
(1) The child has been adjudicated a child in need of assistance pursuant to
section 232.96 .(2) The child has been removed from the physical custody of the child‘s parents for a period of at least six consecutive months.
(3) There is clear and convincing evidence that the parents have not maintained significant and meaningful contact with the child during the previous six consecutive months and have made no reasonable efforts to resume care of the child despite being given the opportunity to do so.
(Emphasis added.)
(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 .
(Emphasis added.)
B. Positions of the Parties.
1. The father. The father argues that the district court erred in granting termination of parental rights under
In addition, the father argues that in order for a child to be “removed from physical custody” of a parent, the parent must have physical custody before the removal occurred. Otherwise, physical custody has not been “removed” or “taken away” from the father.
In support of his argument, the father notes that under
2. The State. The State responds by arguing that under
C. Analysis.
We begin our discussion with a review of the text of
It is possible, perhaps, that we should approach “remove” differently in
Further, there is language in
The notion of removal involving a change is not unknown in other areas of juvenile and family law. We have noted that under the Indian Child Welfare Act, Congress referred to the “removal” of Indian children from their families and placement of such children in foster and adoptive homes. In re A.E., 572 N.W.2d 579, 582 (Iowa 1997). We have also made repeated reference to “removal” of children out of the jurisdiction in our caselaw. See, e.g., In re Marriage of Frederici, 338 N.W.2d 156, 159 (Iowa 1983); In re Marriage of Lower, 269 N.W.2d 822, 825 (Iowa 1978); Alex v. Alex, 161 N.W.2d 192, 199 (Iowa 1968). We have referred to a custody decree prohibiting a parent without prior court approval to remove a child from one county to another. Nesler v. Nesler, 185 N.W.2d 799, 801 (Iowa 1971). We do not suggest that these usages necessarily determine the meaning of the term “remove” in the specific statutory provisions at issue here, but they do suggest that removal in the context of child welfare commonly involves a change in circumstance.
In fact, the notion of the term “remove” and its derivatives as involving a dynamic change in status is commonplace in the law. See, e.g., In Def. of Animals v. U.S. Dep‘t of Interior, 751 F.3d 1054, 1064 (9th Cir. 2014) (holding “remove” in statute means to transfer wild horses and burros
We do not suggest that these usages necessarily mandate an interpretation of the term “removal” under
Of course, when statutes are ambiguous, we will look further into the statute to seek the legislature‘s intent. Id. There is nothing in the context of
We understand the State‘s position is that mere absence of physical custody is sufficient to satisfy the “removed from physical custody” element for termination under
We have also examined the legislative history of the statute. Originally,
The fiscal note suggests that the purpose of the amendment was merely to speed up the time frame for calculation of the required twelve months under
In conclusion, the language, context, policy considerations, and legislative history of the statute tend to cut against the notion that mere lack of physical custody is sufficient to satisfy the statutory requirement of “removal of physical custody.”
The dissent argues that, in fact, physical custody was removed from the father and removal in fact for the required statutory period is sufficient to trigger the statute. On appeal, however, the State did not raise this issue.3 The State on appeal conceded that “[C.F.-H.] always remained in the custody of the mother,” that “[C.F.-H.] has never been in the father‘s physical custody,” and that “[C.F.-H.] has always been ‘removed’ from the physical custody of the father, meaning he has never been in the father‘s physical custody.” Although the dissent makes a plausible argument around the issue of whether C.F.-H. was, in fact, actually removed from physical care, any contention that C.F.-H. had been so removed from physical custody has not been preserved. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002).
In light of our disposition, we do not address the other arguments raised on appeal.
IV. Conclusion.
For the above reasons, the decision of the court of appeals is vacated and the judgment of the district court is reversed.
DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED.
All justices concur except Mansfield, Waterman, and Zager, JJ., who dissent.
MANSFIELD, Justice (dissenting).
I respectfully dissent and would affirm termination of the father‘s parental rights. The court offers various tests for what “removed from the physical custody of the child‘s parent[]” means as used in
Here the father was living with both the mother and C.F.-H. until the fall of 2012. At that time, following the latest report of domestic violence and a report of possible drug use by the father, the Iowa Department of Human Services (DHS) initiated a safety plan that effectively removed the father from the family home. This alteration of status was confirmed in two court orders which gave “custody” of five-year-old C.F.-H. to the mother and provided that the father could only have “visitation ... at the discretion of” DHS. Thereafter the father repeatedly refused services. C.F.-H. never resided with his father again until the father‘s parental rights were terminated in 2016. This case therefore meets
Additionally, the majority‘s test is incorrect. “Removed” is susceptible to two different interpretations. One requires physical separation of the child from the parent. (For example, “I am removed from these events.“) The other requires physical separation plus some affirmative action that brought about the separation. While the latter is the more common use of “removed,” I believe the former test is the one the legislature intended and wrote into the statute in 1992.
Finally, I disagree with the majority‘s contention that the State waived any argument on appeal that the child had been “removed” from the father‘s custody. I do not believe such a waiver is even possible in a termination of parental rights case, and it certainly did not occur here.
I. The Child Was “Removed” from the Father‘s Custody Even Under the Majority‘s Standard.
I begin with a review of the factual record. The juvenile court made a finding that C.F.-H. had been removed from the father‘s custody. An examination of the record not only demonstrates the correctness of this finding, but also shows why this judge, who had presided over this case over its four-year progression from the beginning, correctly terminated the father‘s parental rights.
In November 2012, when C.F.-H. was five years old, he was adjudicated a child in need of assistance (CINA) after the father and mother physically assaulted each other in the family home and there were concerns the father was using meth-
The mother agreed to a DHS safety plan whereby the father would no longer be allowed in the home. The ensuing CINA order provided “[t]hat custody of [C.F.-H.] shall remain with his mother ... subject to protective supervision being provided by the Iowa Department of Human Services” and “[t]hat visitation for [C.F.-H.] with his father ... shall be at the discretion of the Iowa Department of Human Services.” The order also directed both parents to receive certain services. The father moved out of the home.
Three weeks later, a dispositional order was entered. The order reiterated that custody of C.F.-H. would remain with his mother subject to protective supervision from DHS and that the father would have visitation at the discretion of DHS. Again, the parents were directed to receive certain services.
The father did not cooperate in services for the most part. In 2013, he tested positive for methamphetamine and acknowledged ongoing methamphetamine use. After that, he refused drug testing. He never completed the required batterer‘s education program or went through the psychological evaluation ordered by the court.
In 2014, anticipating the completion of CINA proceedings, a district court entered a temporary custody order giving the mother primary physical care of C.F.-H. subject to supervised visitation by the father. Over the mother‘s objection, the parties were granted joint legal custody. The parties agreed to enter a permanent order
As the years passed, the mother had to obtain several no-contact orders against the father. These orders were based on ongoing threats relayed by phone, text, and email from the father to the mother. A number of those threats are in the record. In addition to outright threats, the father sent numerous messages that were highly profane, demeaning, and abusive to the mother and to the female DHS social worker assigned to the case.
After the fall of 2012, C.F.-H. never again resided with his father. While the boy was in his mother‘s care, he gradually improved. He had a series of emotional and behavioral issues and received special education services at school, but he made progress.
During the four years from 2012 to 2016, the mother generally put her life in order. The father did not. The father‘s last unsupervised contact with C.F.-H. came approximately a year before the termination hearing. His last participation in a family meeting took place approximately eleven months before, at which the father “ended the meeting by calling [the mother] horrible names.” The father also stopped showing up for counseling with C.F.-H., having walked out of the last meeting. The most recent visit or contact of any kind between the father and C.F.-H. occurred ten months before the termination hearing. In November 2015, C.F.-H.‘s therapist wrote,
Given [the father‘s] threats to [the mother] and her other son ...; his verbal and written disrespect to [the mother] and [the DHS social worker]; his refusal to follow DHS requirements for UAs and substance abuse treatment aftercare; and his continued alcohol and likely other mind-altering substance use; plus his history of domestic violence, I see little hope in this man making the needed changes to provide [C.F.-H.] with a safe, stable, nurturing environment during visitation.
The DHS social worker believed that the father was using drugs, noting his weight loss. So did the mother, noticing the father‘s agitated state and the metallic smell to his sweat. In December 2015, the father was arrested on a warrant and also charged with driving while under suspension. He did not have regular housing, having been kicked out of the accountability house where he was living due to concerns he had relapsed. The father testified on this subject at the termination hearing:
Q. ... Where do you live currently? A. I‘m in between — I‘ve been in between places.
Q. Okay. How long have you been in between places? A. Quite a while.
Q. Well, give me a time frame. What‘s quite a while? A. Quite a while.
Q. Is that one month? Three months? Six months? A. I gave you will the time frame. It‘s quite a while.
Q. Okay. And before your quite a while started, where did you live? A. With my son.
. . . .
Q. Okay. So if you had a visit with [C.F.-H.], where would that visit take place? A. Probably at my friend‘s house or at the mall, at a park, anywhere he wanted to go, the train museum.
Q. But you wouldn‘t have any place for him to sleep, would you? A. Sure.
Q. At the friend‘s house? A. There or at a hotel room.
Q. What‘s the friend‘s name? A. None of your business.
The termination hearing began on March 22, 2016. Fifteen minutes into the hearing, the father walked out of the courtroom, although he later returned to
The State‘s last witness on the second day was a deputy sheriff who had been working in the courthouse. He testified that he detected an odor of alcohol coming from the father that day. He also had noticed a wet spot in the crotch of the father‘s pants that “sometimes can indicate somebody that is under a controlled substance or alcohol.”
Throughout the hearing, the father remained openly defiant about not submitting to drug or alcohol testing. On this subject, the father testified,
Q. Okay. You‘ve been court-ordered to provide drug testing with the Court for a number — I think from the beginning of — A. Yes. And as I stated, give me a valid reason.
Q. That what? A. I said give me a valid reason.
Q. Well, I didn‘t — I don‘t have to give you a valid reason. The Court ordered you to participate in drug testing. So the Court made a determination that you were to provide random drug and/or alcohol testing as requested by the Department of Human Services or a substance abuse treatment provider. A. And I said give me a valid reason.
Q. So you‘re just choosing to ignore the Court‘s order? A. I‘m choosing to say they need a valid reason to ask for one.
The other witnesses uniformly offered the opinion that termination of the father‘s parental rights would be in C.F.-H.‘s best interests, even if it left him with only one parent. The DHS social worker testified,
Q. And isn‘t it also true that since [C.F.-H.] has not had any contact with his father over the course of the last nine months, that his functioning has significantly improved in all aspects of his life, in academics and behaviorally in school, as well as at home? A. Correct.
The DHS social worker added, “I feel that after four and a half years together and the significant safety concerns that we have today, that that‘s really my only option, to recommend termination of parental rights.” She also volunteered, “[T]here‘s a small portion of me that‘s kind of — almost feels guilty that we‘ve waited this long because [C.F.-H.] is the one emotionally that suffers through all of this.”
Meanwhile, the mother testified,
Q. Are you in support of [the father‘s] rights as to [C.F.-H.] being terminated? A. Yeah.
Q. You‘re going to lose out on child support. A. I don‘t care.
Q. Okay. You‘re also not going to have — [C.F.-H.], like I said, he doesn‘t have another person to step in to be a dad to him. A. He hasn‘t for a long time.
Q. He‘s never had a dad? Is that your testimony? A. Not really. (Witness crying.)
Q. Okay. And what else can you tell us about [C.F.-H.]? Why is this important for [C.F.-H.] to have [the father] out of his life legally? A. I know [C.F.-H.] loves his dad and I know his dad loves him,
but it‘s not fair to a child to have his dad come in and out of his life just when it‘s convenient for him. I was lucky my dad chose his children over the demons of — of the demons from drugs and alcohol. I don‘t understand why it‘s this hard for [the father] to keep going back there.
I could go on but this is not a close case. The juvenile court‘s termination of the father‘s parental rights was clearly justified under
The State proved C.F.-H. had been “removed” from the father‘s custody, even under the majority‘s interpretation of that requirement. In addition to the specific chronology recited above, we have the summary testimony of the DHS social worker:
Q. [A]t the time that the Department of Human Services became involved with this family in juvenile court, isn‘t it true that [the father and the mother] were living together with [C.F.-H.]? A. Correct.
Q. And subsequent to then juvenile court becoming involved, isn‘t it true that your recommendation to the Court was that custody of [C.F.-H.] be placed with [the mother] and not with [the father]? A. Correct.
Q. And [the father] subsequently then moved out of the family home; isn‘t that correct? A. Correct.
Q. Okay. And so in regards to the grounds of the termination petition, isn‘t it true that [C.F.-H.] has been removed from the physical custody of his father for the last 12 of the last 18 months? A. Correct.
Q. In fact, [the father] has never had physical custody of [C.F.-H.] since the Department of Human Services became involved in these proceedings; isn‘t that correct? A. Correct.
In short, once we examine the record, it becomes clear that the father is raising an academic point about the meaning of “removed” with no connection to the actual facts of this case. I do not fault the father‘s counsel for advancing this argument. Counsel has performed admirably despite having very little to work with. But I would affirm this termination and wait for another case where the meaning of “removed” matters.6
II. In Any Event, the Majority‘s Interpretation of “Removed” Is Incorrect.
Furthermore, I question whether the majority‘s standard is the right one. The full texts of
Also, the statute says “removed ... for” a minimum period of time (which varies
In 1992, the legislature amended
This case is a good illustration of that point. C.F.-H. had been in CINA limbo for three-and-a-half years. Time was clearly running out. See
Another important reason for reading “removed” broadly is that we decided long ago to read “parents” broadly as including only one parent. The statute literally requires that “[t]he child has been removed from the physical custody of the child‘s parents.” Id.
However, in 1992, after the legislature had amended the statute as noted above earlier in the year, we held that when a child is in the custody of one parent, the statutory provisions referring to “parents” could nonetheless be used to terminate the parental rights of the noncustodial parent only. In re N.M., 491 N.W.2d 153, 156 (Iowa 1992). This rule is now firmly entrenched in our caselaw. See, e.g., In re H.S., 805 N.W.2d 737, 749 (Iowa 2011). Once it is clear that just a single noncustodial parent‘s rights may be terminated, it makes no sense to draw lines over how that parent became a noncustodial parent, so long as the other requirements for termination have been met. In other words, the broad definition of “removed” works in tandem with our broad definition of “parent.”7
Further, the court indicates that every parent should get “a chance at physical custody” before losing parental rights. In my view, it depends on what one means by “a chance at physical custody.” The very purpose of the CINA proceeding is to give the parents every chance to succeed. Here the father was given many such chances. He wasted them. Once a child has been adjudicated CINA, our juvenile laws do not guarantee — nor should they guarantee — that every parent will get a trial run at parenting on his or her own unilateral terms. Yet that is what this father wants and claims to be entitled to under the law.
I fear the majority‘s approach to this case will lead to a bleak and pointless outcome. The father will never be able to establish an appropriate relationship with C.F.-H., because he continues to refuse to address his drug and alcohol issues. DHS will need to stay involved indefinitely. No permanency will be achieved. And the mother, DHS, and service providers will continue to be subjected to unacceptable verbal abuse that no judge or other employee of the Iowa Judicial Branch would tolerate in his or her line of work.
III. The State Did Not Waive the Issue of Whether C.F.-H. Had Been Removed from His Father‘s Custody.
As noted, the juvenile court made a finding below that C.F.-H. had been removed from his father‘s custody. The majority brushes past that finding, however. It faults the State for not defending that finding on appeal. In my view, the court misunderstands our role in termination-of-parental-rights appeals and also fails to put the State‘s appellate response in the proper context.
I agree that the State‘s response to the father‘s petition on appeal was inartful. Still, the State correctly pointed out that when the CINA petition was filed in the fall of 2012, the father had been living with the mother and C.F.-H. Thereafter, as part of a safety plan, the father was no longer allowed in the home. The State also acknowledged, “Throughout this case, [C.F.-H.] has never been in the father‘s physical custody.” That statement was correct. Since this case was commenced by the filing of the CINA petition, C.F.-H. has not lived with his father.
True, the State later made an incorrect statement that C.F.-H. “has never been in the father‘s physical custody.” (Emphasis added.) I suspect that the State either was
To begin with, the State did not have to file a response to the father‘s petition on appeal at all. The special rules governing expedited CINA and termination-of-parental-rights appeals provide that any response to a petition on appeal is “optional.”
Also, unlike in a normal appeal, the parties usually do not have access to the transcript during the briefing process. For example, in this case, the transcript was filed in the district court on a Friday afternoon and the State submitted its response to the father‘s petition on appeal to our court the following Monday. I would presume the State had no opportunity to review the transcript before preparing its response.
Accordingly, we may affirm the juvenile court‘s order based on our independent review of the record, regardless of the content of the appellee‘s response. See, e.g., In re D.W., 791 N.W.2d 703, 707 (Iowa 2010) (“[W]e may affirm the juvenile court‘s termination order on any ground that we find supported by clear and convincing evidence.“). In a termination-of-parental-rights case like this, where the State‘s appellate counsel may have fumbled the discussion of the record somewhat in its optional response, our job is to review the record independently and apply the law to it.
Also, in fairness to the State, the father was making a different argument in his petition on appeal than the court endorses today. The father argued on appeal that a formal removal order was necessary. The State‘s response was geared to that argument. Now, however, the majority determines that a de facto removal is sufficient, but it won‘t examine the record for evidence of a de facto removal. Instead, it relies on a purported concession by the State in the context of a different argument. I think that is unfair.
For all these reasons, I respectfully dissent and would affirm both the juvenile court and the court of appeals.
Waterman and Zager, JJ., join this dissent.
Paula SEGURA and Ricardo Segura, Appellants, v. STATE of Iowa, Appellee.
No. 15-0203
Supreme Court of Iowa.
January 13, 2017