IN THE COURT OF APPEALS OF IOWA
No. 14-0081
Filed March 12, 2014
IN THE INTEREST OF J.K.G.,
Minor Child,
J.R., Mother,
Appellant,
R.A., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Carroll County, Adria Kester,
District Associate Judge.
A mother and father separately appeal the termination of their parental
rights to their special-needs daughter. AFFIRMED ON BOTH APPEALS.
Robert E. Peterson, Carroll, for appellant-mother.
Mark J. Rasmussen, Jefferson, for appellant-father.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant
Attorney General, John C. Werden, County Attorney, and Erik Howe, Assistant
County Attorney, for appellee.
Martha Sibbel of Law Offices of Martha Sibbel, P.L.C., Carroll, attorney
and guardian ad litem for minor child.
Considered by Vogel, P.J., and Tabor and McDonald, JJ.
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TABOR, J.
J.K.G. is a child with special needs related to low birth weight and early
hospitalization for failure to thrive. J.K.G. is now almost two years old and suffers
developmental delays and difficulty with muscle development and vision. The
question in this appeal is whether either of the parents is able to offer the full-
time, specialized care J.K.G. will require to reach her full potential, including
nutritional, optical and physical therapies.
The juvenile court decided neither parent could muster the “exceptional
parenting skills” required to meet J.K.G.’s needs and found it in her best interests
to terminate their parental rights. In separate appeals, both the mother, Joni, and
the father, Ricardo, contend the State failed to present clear and convincing
evidence for termination of their rights under Iowa Code section 232.116(1)(h)(4)
(2013). They also argue severing ties is not in the child’s best interests, given
their strong bonds with J.K.G. See Iowa Code §§ 232.116(2), (3). We admire
the sincere desire to reunite with J.K.G. shown by both Joni and Ricardo, but
ultimately we see the realities of raising J.K.G. to be too demanding for even the
best efforts of her natural parents.
J.K.G. was born in April 2012, weighing only four pounds, thirteen ounces.
She was hospitalized twice in her first ten weeks for malnutrition, dehydration,
and failure to thrive. J.K.G.’s mother, Joni, has learning disabilities and required
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remedial instruction in the proper care and feeding of the baby during the hospital
stays.1
J.K.G. weighed seven pounds, fourteen ounces when released on July 5,
2012. During the next five days in her mother’s care, J.K.G. lost eight ounces.
The baby’s skin took on a grey color, and she had little muscle tone, leaving her
unable to lift her head or control her arm and legs. Medical professionals viewed
the baby’s condition as life threatening. The Department of Human Services
(DHS) sought and received an emergency removal order on July 11, 2012. The
baby began to gain weight immediately in her foster care placement.
The juvenile court adjudicated J.K.G. as a child in need of assistance
(CINA) on August 22, 2012. The court ordered a mental health evaluation for
Joni and paternity testing for Ricardo, whom Joni identified as the child’s father.
Testing confirmed Ricardo was J.K.G.’s father. Joni and Ricardo could not get
along, so the DHS provided supervised visitation sessions, separately for each
parent, several times per week. J.K.G. required physical therapy to increase her
strength and muscle development and the parents were encouraged to help her
with her exercises during the visits.
In November 2012, Joni underwent a psychosocial evaluation and
parenting skills assessment. She was diagnosed with posttraumatic stress
disorder, as well as chronic and borderline intellectual functioning, with an IQ
1
During this time, Joni was living with James, who was not the baby’s father. Joni told
DHS workers that James was physically and verbally abusive to her during and after the
pregnancy.
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score of 71, placing her in the borderline range.2 The report indicated Joni was a
“concrete learner” who could follow immediate instructions, but was unable to
adapt her actions independently based on changing circumstances. This
assessment drew concerns about Joni’s ability to react appropriately to
unforeseen changes in her daughter’s medical condition and development. Joni
participated in nearly two hundred hours of parenting education and instruction
arranged by the DHS. She was able to implement suggestions made by the
trainers, but without prompting or directions, she was unable to respond to
J.K.G.’s evolving needs. Most troubling, Joni did not follow through with the
physical therapy exercises J.K.G. required to achieve muscle tone.
Ricardo also received parenting instructions during his visits with J.K.G.
Ricardo is a native Spanish speaker, but despite the language barrier, he was
able to learn from the service providers and grew more comfortable with taking
care of his daughter. But Ricardo continued to rely heavily on the service
providers for direction.
The State filed a petition on March 4, 2013, seeking termination of the
rights of both parents. The juvenile court held a termination hearing on May 31,
2013, and granted the parents six additional months to reunify with their
daughter. The court imposed the following three expectations for the parents
during those six months: (1) develop parenting skills to care for a child with
2
Joni has lived on her own for seven years, working part time and receiving
Supplemental Security Income (SSI) disability benefits, with her step-mother as the
payee.
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special needs, (2) demonstrate the ability and willingness to co-parent the child,
and (3) maintain stable mental health.
The juvenile court received a parenting assessment for Ricardo completed
in November 2013. The licensed social worker who performed the assessment
noted that, like Joni, Ricardo seemed to have below average intelligence. The
assessment opined: “IQ does make a difference with special needs children like
[J.K.G.] at times.” By the time of the assessment, Ricardo had been having
unsupervised visits with J.K.G. for about six weeks. The assessment recognized
many positive traits in Ricardo. For example, Ricardo had a stable employment
history and a strong support system from his brother, his sister-in-law and her
extended family with whom he resided. He did not have substance abuse issues
or any recent criminal offenses.
The juvenile court held a second termination hearing on December 5,
2013. The Family Safety, Risk and Permanency (FSRP) worker testified both
parents exhibited a lot of love for J.K.G., but were not able to meet her special
needs, even after hundreds of hours of parenting assistance. The FSRP worker
found safety issues at Joni’s apartment, including mounting clutter, unsanitary
practices, and placement of a Scentsy lamp containing hot wax within the
toddler’s reach. For his part, the worker believed Ricardo was surprised by
J.K.G.’s increasing mobility. He did not engage in the level of physical interaction
with his daughter the service providers expected. Moreover, his supervision was
sometimes lax. During one visit, the child took an accidental tumble on stairs at
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his home resulting in a bump on her head and requiring a trip to the emergency
room.
The DHS case supervisor learned from the physical therapist that J.K.G.
was starting to regress in her muscle tone as she spent more time in the care of
her parents. The worker opined: “given her fragile state as far as her
development, that was very concerning to me.” The evidence also revealed the
parents did not communicate effectively with each other—both declining to share
information in a journal exchanged during visitations. The DHS worker testified
J.K.G. was adoptable, though a pre-adoptive family had not yet been identified.
J.K.G.’s guardian ad litem (GAL) asked the court to terminate parental
rights, noting: “we have parents with learning disabilities, we have a child with
special needs.” The GAL believed the parents would not be able to meet the
developmental needs of their daughter and that she faced “probable harm” if
returned to their custody.
Relying on Iowa Code section 232.116(1)(h), the juvenile court terminated
the rights of both parents in an order filed January 3, 2014. Joni and Ricardo
filed separate petitions on appeal.
I. Standard of Review
We review the order terminating parental rights de novo. In re D.W., 791
N.W.2d 703, 706 (Iowa 2010). We give serious consideration to the district
court’s factual findings and credibility determinations, but we are free to reach our
own conclusion when deciding if termination was proper. Id.
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We will uphold an order if the evidence in support of termination is “clear
and convincing,” which is defined as the absence of any “serious or substantial
doubts” as to its correctness or to the conclusions drawn from it. Id.
II. Statutory Grounds
The juvenile court based its decision on section 232.116(1)(h). Under that
provision, the court may terminate the rights of a parent to a child if: (1) the child
is three years old or younger, (2) the child has been adjudicated a CINA under
section 232.96, (3) the child has been out of the parents’ custody for at least six
of the last twelve months or the last six consecutive months, and (4) “[t]here is
clear and convincing evidence that the child cannot be returned to the custody of
the child's parents as provided in section 232.102 at the present time.” Iowa
Code § 232.116(1)(h).
Neither parent disputes the first three elements were met. J.K.G. was
about twenty months old, had been adjudicated CINA in August 2012, and had
been in foster care for almost seventeen months by the time of the December
2013 termination hearing. The point of contention is the fourth element. Both
parents in their petitions on appeal disagree with the juvenile court’s finding that
J.K.G. could not be presently returned to their custody. See Iowa Code
§ 232.116(1)(h)(4). They do not elaborate on their positions.
The case for termination is not overwhelming in regard to either Joni or
Ricardo. The record “does not present any of the usual precursors to termination
of parental rights, such as physical or emotional abuse of the child, substance
abuse by one or both parents, domestic abuse, parental criminal conduct, or
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even overt neglect.” See In re A.M., ___ N.W.2d ___, ___, 2014 WL 685401 at
*10 (Iowa 2014). Likewise, all agree these parents care deeply for J.K.G. and
have made some progress in feeding and comforting her. See id.
On the other hand, the record shows after more than one year of services,
neither Joni nor Ricardo can meet J.K.G.’s special needs without the continued
involvement of DHS workers. The FSRP worker, the DHS case manager and the
GAL all recommended termination. See D.W., 791 N.W.2d at 707 (noting service
providers and GAL were unable to advocate for reunification). We give
considerable weight to their recommendations.
The parents’ lower mental functioning, standing alone, cannot be the
reason for terminating their rights to a child. See In re D.W., 791 N.W.2d at 708.
But parents’ intellectual limits are relevant considerations when they affect the
child’s well-being. See id. Those considerations loom large in this case due to
J.K.G’s health and developmental challenges.
J.K.G.’s medical condition requires ongoing visits to her pediatrician,
gastroenterologist, ophthalmologist, and geneticist. She needs intensive physical
therapy, nutritional monitoring, and attention to her developmental delays. We
agree with the juvenile court’s determination that her vulnerabilities demand a
level of exceptional parenting, which Joni and Ricardo have not shown
themselves capable of providing.
While Joni’s parents and members of Ricardo’s extended household
offered their assistance in the care of J.K.G., the service providers did not see
that commitment in action. During the child’s visits to their respective homes,
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Joni and Ricardo have shouldered the responsibility of their daughter’s care
without much involvement from other caregivers. Joni’s father and stepmother
visited her infrequently, and the other adults in Ricardo’s home were busy with
their own jobs and children. Moreover, Joni and Ricardo did not meet the
juvenile court’s expectation that they develop a constructive dialogue between
them regarding the child’s care.
The juvenile court allowed these parents additional time to see if they
could acquire the skills necessary to care for their special-needs daughter. But
time could not remedy their parenting deficiencies. The parents did not focus on
her physical therapy exercises, and her muscle development regressed as she
spent more time in their care. We agree with the juvenile court’s conclusion
J.K.G. could not be safely placed in the custody of Joni or Ricardo. The child’s
immediate and long-term nurturing and growth will require caregivers better able
to respond to her precarious medical conditions.
III. Best Interests
Both Joni and Ricardo contend termination of their rights is not in J.K.G.’s
best interests, citing Iowa Code sections 232.116(2) and (3). Both claim an
emotional bond with their daughter should preclude severing their legal ties.
“[T]here is no all-encompassing best-interest standard to override the
express terms of the statutory language.” In re P.L., 778 N.W.2d 33, 40 (Iowa
2010). If a ground for termination exists under section 232.116(1), we turn to the
factors in section 232.116(2) to decide if, under that framework, termination
serves the child’s best interests. Subsection (2) directs our primary consideration
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to the child’s safety; her long-term nurturing and growth; and her physical,
mental, and emotional needs. Iowa Code § 232.116(2).
Finally, we must decide if any circumstances cited in subsection (3) tip the
balance away from termination. At issue here is section 232.116(3)(c), which
allows the court to forego termination if clear and convincing evidence exists that
termination would be detrimental to the child due to the closeness of the parent-
child relationship.
The service providers testified J.K.G. recognizes and responds to her
mother and is comfortable with her father when visiting his home. But the record
does not reveal clear and convincing evidence termination would be harmful to
J.K.G. because she shares such a tight bond with her mother or her father. See
P.L., 778 N.W.2d at 41.
In J.K.G.’s situation, the utmost concern is her fragile health. The inability
of her natural parents to respond to her unpredictable needs, without prompting,
supports the juvenile court’s conclusion that freeing her up for adoption was in
the child’s best interests. The DHS case manager was optimistic about finding
capable parents willing to adopt J.K.G. Sections 232.116(2) and (3) do not stand
in the way of termination.
IV. Reasonable Efforts
Both parents allege the DHS failed to make reasonable efforts to allow
reunification with J.K.G. They claim that during the six-month extension granted
by the juvenile court, the DHS did not provide adequate services. But the
parents do not specify on appeal what additional services would have enabled
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them to reunite with J.K.G. nor do they allege they asked DHS for help they didn’t
receive.
The juvenile code requires the DHS to make “every reasonable effort to
return the child to child’s home as quickly as possible consistent with the best
interests of the child.” Iowa Code § 232.102(7); In re C.B., 611 N.W.2d 489, 493
(Iowa 2000). What constitutes reasonable services varies depending on the
requirements of the individual case. In re C.H., 652 N.W.2d 144, 147 (Iowa
2002). When a parent fails to identify a deficiency in services or to ask for
additional services, he or she may be precluded from later challenging the
adequacy of the services. Id. at 147 n.4.
After the juvenile court gave the parents an extension of six months, the
DHS arranged for more semi-supervised and unsupervised visitation with both
the mother and the father. The DHS estimated Joni and Ricardo each received
more than two-hundred hours of instruction in parenting skills from FSRP
workers and other agencies. The parents’ shortcomings cannot be blamed on a
lack of reasonable efforts by the DHS.
Our de novo review of the record leads us to the same conclusion as the
juvenile court: “Neither parent has demonstrated they can provide constant,
responsible, and reliable care to [J.K.G.] in the statutory time frame allowed to
them. Despite numerous services, showing ‘some’ improvement in parenting is
just not enough.” Accordingly, we affirm the order terminating the rights of both
parents.
AFFIRMED ON BOTH APPEALS.