IN THE INTEREST OF K.S., 01-1170 (Iowa App. 5-15-2002)

No. 1-1061 / 01-1170.Court of Appeals of Iowa.
Filed May 15, 2002.

Appeal from the Iowa District Court for Clinton County, ARLEN J. VAN ZEE, District Associate Judge.

Parents appeal from the juvenile court order terminating their parental rights. REVERSED AND REMANDED.

Robert McGee, Clinton, for appellant-father.

Jeffrey Farwell, Clinton, for appellant-mother.

Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, and Jayme Kirsch, County Attorney, for appellee-State.

Matthew Fullerton, Clinton, guardian ad litem for minor children.

Considered by MAHAN, P.J., and MILLER and HECHT, JJ.

HECHT, J.

Michael S. and Patricia M. appeal from the juvenile court order terminating their parental rights to K.S., born July 23, 1996, and V.S., born May 5, 1999. We reverse the juvenile court’s order and find there is not clear and convincing evidence to support the termination.

I. Factual and Procedural Background.
We begin with background information pertaining to the parents. Michael was born August 29, 1974. The evidence suggests Michael’s father was physically abusive to Michael and his mother and sexually abusive to Michael’s sisters. The record includes an allegation that at age twelve, Michael engaged in inappropriate sexual conduct[1] with a six-year-old niece. Although he suffers from a learning disability, Michael completed a GED while in the Job Corps. He has been consistently employed as a truck driver and as a chauffeur for a riverboat casino. A psychological test conducted during the pendency of these proceedings suggested Michael suffers from significant emotional problems and needs psychological treatment.

Patricia was born on March 22, 1976. She was raised by her grandmother. Patricia was hospitalized for treatment of an eating disorder eight times between the ages of eleven and sixteen. In October of 1994, she gave birth to a son. Patricia was unable to support the child and consented to his adoption when he was four months old.

Michael and Patricia met in February of 1995 when they were both involved in the Job Corps. Patricia became pregnant with Michael’s child and gave birth to K.S. on July 23, 1996. Patricia soon became pregnant again and gave birth to a daughter, Zena, in August of 1997. Zena tragically died of SIDS at five weeks of age. Within days of Zena’s death, Patricia’s grandmother also died. Patricia admits a history of suicidal ideation, depressive symptoms, and panic attacks, which resulted in four hospitalizations. The most recent of these hospitalizations was in August of 1998.

This case came to the attention of the Department of Human Services (DHS) on March 17, 1999, when it was discovered that Patricia had bitten K.S. Patricia explained that K.S. had a habit of biting people, and that after the child bit her at least twelve times, Patricia bit K.S. in an effort to teach the child to refrain from such conduct. The bite left a mark on the upper arm of K.S. and resulted in a founded child abuse report on April 9, 1999. There is no evidence in the record that K.S. sustained any permanent physical injury as a result of the incident.

On June 2, 1999, Michael and Patricia took V.S. to the University of Iowa Hospital because the child had failed to achieve appropriate physiological growth. The child appropriately gained weight during the hospitalization and was discharged to her parents with instructions on proper nutrition. V.S. is small in stature and eats slowly.

On June 17, 1999, Michael and Patricia engaged in a physical altercation and voluntarily placed the children with Michael’s sister, Lori, and her partner, Janice. Child in need of assistance proceedings were commenced on October 19, 1999.

On January 14, 2000, the parties stipulated to a CINA adjudication. The juvenile court’s order of adjudication identified Patricia’s physical abuse of K.S., and the failure of V.S. to attain appropriate physiological growth as the basis for the adjudication. The court continued placement of the children with their paternal aunt.

A dispositional hearing was held on February 23, 2000. Michael requested extended time for visitation, and the court approved a case permanency plan calling for supportive services to achieve family reunification. A review hearing was held on September 7, 2000. The court approved an updated permanency plan and continued the children’s placement. The court’s review order noted that Michael and Patricia acknowledged the sufficiency of the types and quantity of services provided to them under the case plan. The order called for a progress report and updated case plan in six months.

A permanency hearing was held on March 20, 2001. DHS reported little progress had been made toward reunification since the last review hearing. The court directed the State to commence proceedings for the termination of parental rights and again continued the placement of the children with DHS.

A petition for termination of parental rights was filed on April 9, 2001. The State alleged Iowa Code section 232.116(1)(e) (2001)[2] as the ground for termination of the parents’ rights to K.S. and section 232.116(1)(g)[3] as the ground for termination of rights to V.S. The termination hearing was held on May 23-24 and June 11, 2001. On July 6, 2001, the court ordered termination of both parents’ rights.

On appeal, Michael and Patricia contend (1) the State failed to meet its burden to prove by clear and convincing evidence that the children cannot be returned to the parents’ custody at the present time because of the risk of physical abuse or other harm to the children, and (2) the district court erred in finding the State employed reasonable efforts to reunite the family.

II. Scope and Standards of Review.
The standard of review in termination cases is de novo. In re M.N.W., 577 N.W.2d 874, 875 (Iowa Ct. App. 1998). Accordingly, we review both the facts and the law and adjudicate rights anew. In re T.A.L., 505 N.W.2d 480, 482 (Iowa 1993). We give weight to the factual determinations of the juvenile court, especially when considering the credibility of witnesses, but are not bound by them. Id. The grounds for termination must be proven by clear and convincing evidence. In re E.K., 568 N.W.2d 829, 831 (Iowa Ct. App. 1997). Our primary concern is the best interest of the child; we look to both the child’s long-range and immediate interests. In re M.T., 613 N.W.2d 690, 691 (Iowa Ct. App. 2000).

III. Michael’s Parental Rights.
The children were found to be in need of assistance because Patricia bit K.S., and V.S. was not properly nourished. The State contends the children cannot be returned to Michael’s care because he (1) disclaimed responsibility for the malnourishment of V.S., (2) failed to successfully complete treatment for mental health problems, (3) failed to undergo treatment for an alleged history of sexual abuse, (4) failed to understand the importance of precluding contact between his parents and the children, and (5) missed too many opportunities for supervised visitation. Upon de novo review of the record, we find the State has failed to meet its burden and therefore reverse the termination of Michael’s parental rights.

DHS representatives attached great significance to Michael’s denial of personal responsibility for V.S.’s malnourishment. Michael apparently claimed he was not aware of the child’s distress because he was away from the home in the course of his employment as a truck driver. We find that despite his duties as a truck driver at the time, Michael was home with sufficient frequency in the evenings and on weekends to have perceived the baby’s apparent health problem. However, when he was advised to seek medical attention for V.S., Michael took the child to his family doctor and later to the University of Iowa Hospitals and Clinics for treatment. The baby gained weight during the hospitalization, and she was discharged to her parents’ care. Upon the recommendation of treating physicians, Michael and Patricia changed the baby’s formula and established a feeding schedule. There is no evidence that V.S. was thereafter malnourished while in the care of her parents[4] or her paternal aunt. Although V.S. eats slowly and sometimes needs encouragement from caretakers to eat her food, she is now healthy.

In assessing the risk of recurrence of the child’s malnutrition, we find it significant that there is no evidence tending to prove her sibling was ever malnourished. Indeed, those who supervised visitations have suggested that K.S.’s food intake needs to be monitored and restricted because of obesity. Moreover, it is undisputed that both parents have provided appropriate meals for the children during supervised visits. In short, whether or not Michael sufficiently acknowledged personal responsibility for the malnourishment of V.S., we find no indication that he is unable to provide appropriate nourishment for the children at this time.

In November of 1999, Michael underwent psychological testing. The evaluator opined Michael had significant emotional problems including depression, a personality disorder, and little insight into his strong need for treatment. After four months of psychotherapy, Michael still had “some serious problems with narcissistic personality disorder.” However, the therapist concluded that although Michael “tends to see himself in a much more favorable light than is real,” and “tends to do a lot of minimization, denial, and blame,” Michael was described as “attentive to therapy” and “making some limited progress.”

The case plan directed Michael to complete all psychological evaluations, anger management/aggression therapy, and any recommended counseling at his expense. According to the therapist, Michael did cooperate in treatment. “Although he is somewhat narcissistic,” the therapist opined, Michael “did agree that there were some changes that he could make in his behaviors.” Moreover, the therapist thought Michael “was progressing through therapy at a moderate rate, and that he was making progress.” Unfortunately, however, Michael discontinued the psychotherapy before completing it to the satisfaction of his therapist and DHS.

Noncompliance with the case plan is not, in and of itself, a ground for termination of parental rights. In re J.L.P., 449 N.W.2d 349, 352 (Iowa 1989). Nonetheless, such non-compliance can be considered evidence of Michael’s attitude toward recognizing and correcting the problems that resulted in the loss of custody Id. Although we are convinced Michael does have significant emotional and personality problems requiring further treatment, we do not find clear and convincing evidence in this record establishing that such problems preclude a return of custody to him at this time. The evidence that Michael loves and is bonded with his daughters is uncontroverted in the record. He has a history of stable employment as a chauffeur and a card dealer demonstrating that, notwithstanding his emotional challenges, Michael is able to interact adequately with other people. Moreover, there is no evidence that Michael’s emotional problems have been so severe as to pose a threat to himself or others. He has no history of voluntary or involuntary hospitalizations for treatment of emotional problems. His stable employment has allowed him to pay substantial financial support for the care of the children during the pendency of this case.[5]

The case permanency plan also directed that Michael be evaluated to assess his need for treatment as a sexual abuse perpetrator. When Michael was approximately twelve years old, he allegedly engaged in some type of sexual contact with a niece who was then approximately six years of age.[6] Although the record suggests that Michael was evaluated in this regard by therapist Dan Fullerton, the State presented no evidence tending to prove that Michael presently poses a risk to others as a perpetrator of sexual abuse. Moreover, there is no allegation in this case that Michael engaged in any improper sexual behavior after becoming a teenager. We do not find clear and convincing evidence that the children cannot be returned to Michael’s custody because of his past sexual conduct or because of his failure to complete treatment for past alleged sexual indiscretions of unknown character.

The juvenile court found that Michael does not understand the requirement and necessity of preventing contact between his parents and his children. The restriction of contact was imposed by DHS because of the perpetration of sexual abuse by Michael’s father against his sisters, and Michael’s mother’s failure to protect them from such abuse. Upon de novo review of the record, however, we find no evidence that Michael and his siblings do not understand the risks associated with their father’s past conduct. We find credible Michael’s testimony affirming his understanding of these risks and his commitment to take precautions to prevent unsupervised contacts between his parents and their grandchildren. Thus, we find the history of sexual abuse by Michael’s father does not preclude the return of the children to Michael’s custody at this time.

The juvenile court’s rationale for termination of parental rights also included Michael’s history of missing visits. A representative of DHS testified Michael missed approximately one visit per month because of claimed illnesses. Michael conceded that on some occasions he requested visits be rescheduled because of migraine headaches or other illnesses.[7] In February of 1991, Michael was confronted by DHS representatives about the children’s negative reaction to missing visitation. Thereafter Michael refrained from making requests to reschedule visits for health reasons. We do not find Michael’s visitation record so clearly and convincingly deficient as to preclude a return of the children’s custody to him at this time.

In summary, we acknowledge Michael has emotional and personality challenges that will require further mental health services. When considered together, however, these challenges and Michael’s parenting history do not clearly and convincingly justify termination of his parental rights at this time. The State has not established on this record that the best interests of the children require termination of Michael’s parental rights.

IV. Patricia’s Parental Rights.
The State contends, and the juvenile court concluded, Patricia’s mental health issues and her failure to deal with them preclude the return of custody to her at this time. She has encountered numerous mental health challenges in her life. During her adolescence, she was hospitalized numerous times for treatment of eating disorders. On several other occasions, she has been hospitalized for treatment of depression, anxiety, and suicidal ideation. These mental health difficulties have been exacerbated by the SIDS death of her daughter, Zena, and the death her grandmother who was actively involved in raising her.

The State contends Patricia is unable to resume custody of the children because she has not obtained, and does not understand, her substantial need for adequate treatment of her emotional problems. Patricia contends she is emotionally stable at this time and therefore does not require therapy or medication.[8] She notes that her last mental health hospitalization occurred more than two years before the termination hearing.

We are unpersuaded that Patricia’s mental health problems pose a sufficient risk of adjudicatory harm to the children that she is unable to resume the role of a custodial parent. Despite her history of emotional difficulties, she was employed on a full-time basis during the pendency of this action until she was recently temporarily laid off. She made significant progress in the employment of strategies to deal with the challenging behaviors of K.S. A visitation supervisor opined that Patricia has shown creativity in planning meals and visitation activities for the children. In short, although we do not minimize the significance of the anxiety and depression which have long affected Patricia’s life, we do not find clear and convincing evidence that those problems are currently so severe as to preclude her resumption of custody.

The juvenile court’s termination decision relied in part upon the State’s assertion Patricia failed to take responsibility for her actions that led to the malnourishment of V.S. We reject this assertion because we find credible Patricia’s testimony that she bore full responsibility for the child’s condition.

The State contends Patricia’s decision in November of 1999 to consent to termination of her parental rights supports the juvenile court’s decision in this case. We first note that Patricia reversed her decision in February of 2000 and thereafter consistently resisted termination of her rights. Upon de novo review of the record, we find Patricia’s decision troubling, but not a justification for termination. She explained her temporary inclination to consent was founded upon a variety of stressful considerations including her despair about being unable to pay the child support that was expected of her during the children’s placement and the realization that her parenting ability might be inferior to that of the caretakers who were providing the children’s care. Given her history of emotional challenges, we find Patricia’s explanation of her temporary decision plausible. Moreover, we conclude her unfortunate, but temporary, decision does not justify termination of her parental rights.

Like Michael, Patricia was criticized for missing visitations. The State’s version of the evidence is that Patricia missed on average one visit per month. Patricia disputed the State’s claim, conceding that she only missed approximately three visits because of two work-related injuries. Whatever the actual number of missed visits, however, Patricia did not miss any visits after she was confronted about the adverse reactions expressed by the children when visits were cancelled or rescheduled. Given the positive description of Patricia’s participation during visitation, however, even the State’s version of the number of missed visits does not justify termination in this case. Patricia and the children are clearly well-bonded. The evidence is uncontroverted that the children respond favorably to the visitations and are very disappointed when they do not occur as scheduled. Accordingly, we conclude termination is not justified because of Patricia’s failure to comply with the visitation schedule.

Finally, the juvenile court’s termination decision relied in part upon the State’s assertion that Patricia failed to provide a safe environment for the children. In particular, DHS contended the stairway landing to Patricia’s apartment had inadequate railings and the dwelling lacked smoke detectors. We have carefully examined the photographs of the stairway landing and find it is not unsuitable for the children. Furthermore, Patricia promptly supplied smoke detectors for the dwelling when DHS required them. In short, we reject the State’s assertion that Patricia’s parental rights should be terminated because of dwelling safety considerations.

V. Conclusion.
We reverse the juvenile court’s order terminating the parental rights of Michael and Patricia. We remand this case to the juvenile court for further proceedings to determine what additional services are required to advance reunification of these parents and their children.

REVERSED AND REMANDED.

MILLER, J., concurs; MAHAN, P.J., dissents.

MAHAN, P.J. (dissenting)

I respectfully dissent. I agree with the majority’s conclusion that the parents have made some progress during services. However, I would conclude that the State has shown by clear and convincing evidence these children cannot be returned to the parents. I would, therefore, affirm the juvenile court.