IN THE COURT OF APPEALS OF IOWA
No. 17-0995
Filed September 27, 2017
IN THE INTEREST OF C.E.,
Minor Child,
A.E., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Montgomery County, Amy L.
Zacharias, District Associate Judge.
A mother appeals the termination of her parental rights to her now-one-
year-old son. AFFIRMED.
Justin R. Wyatt of Woods & Wyatt, P.L.L.C., Glenwood, for appellant
mother.
Thomas J. Miller, Attorney General, and Ana Dixit, Assistant Attorney
General, for appellee State.
Karen L. Mailander of Mailander Law Office, Anita, guardian ad litem for
minor child.
Considered by Danilson, C.J., and Tabor and McDonald, JJ.
2
TABOR, Judge.
A mother, Ashley, appeals the juvenile court’s order terminating her
parental relationship with now-one-year-old C.E. Her main argument for reversal
is that the Iowa Department of Human Services (DHS) placed too much
emphasis on a September 2015 psychological evaluation expressing the
pessimistic view that her parenting deficiencies would not improve over time.
Ashley also contends the DHS incorrectly believed her speech impediment—a
motor-skills disorder called apraxia—constituted an intellectual disability that
hindered her parenting skills. After independently reviewing the record,1 we
conclude neither of those issues clouded the juvenile court’s judgment in the
child-welfare proceedings. Like the juvenile court, we find clear and convincing
evidence in the record to support terminating Ashley’s parental rights to her son.
I. Facts and Prior Proceedings
Born in late July 2016, C.E. was removed from the care of his mother
while still in the hospital. The removal was prompted by the concerns of a child
protection worker who had observed Ashley struggling to meet the basic needs
of her older child, J.E., who had been previously removed from Ashley’s care.2
The child protection worker described Ashley’s “disengagement” during
interactions with J.E.—Ashley would “be texting even while feeding” the baby and
1
We review termination-of-parental-rights proceedings de novo, which means examining
both the facts and law and adjudicating anew those issues properly preserved and
presented. See In re L.G., 532 N.W.2d 478, 480 (Iowa Ct. App. 1995). We are not
bound by the juvenile court’s factual findings, but we give them weight, especially when
witness credibility is critical to the outcome. See In re M.W., 876 N.W.2d 212, 219 (Iowa
2016). Proof must be clear and convincing, which means we see no “serious or
substantial doubts as to the correctness [of] conclusions of law drawn from the
evidence.” In re D.W., 791 N.W.2d 703, 706 (Iowa 2010).
2
The custody of J.E. is not a subject of this appeal.
3
“slightly slapped [J.E.’s] hand and said ‘bad girl’ while [J.E. was] drinking her
bottle.” The DHS exhibit in support of C.E.’s removal also included the following
quotations from a psychological evaluation of Ashley completed by Dr. Rosanna
Jones-Thurman on September 14, 2015:
[T]he examiner believes that [Ashley] will continue to show
obviously the low cognitive functioning, which will not change over
time, but a minimization of responsibility and accountability, as well
as not acknowledging some of the issues and problems as they
are. Certainly there appear to be difficulties with understanding
correct parenting and Ashley really shows no emotion here today.
Certainly there appear to be some significant mental health
issues and problems here that will not go away with any amount of
counseling or education. At this point in time, the examiner would
not recommend that [Ashley] have her child back even with family
supervision as it appears that there are too many negative and
hostile dynamics within the family as well.
At the hearing on C.E.’s removal in early August 2016, Ashley’s attorney
complained the State “cherry picked” language from Dr. Jones-Thurman’s report
favorable to its position. In its temporary-removal order, the court approved a
second psychological evaluation for Ashley “to determine if there has been any
progress made.” C.E. was placed with a foster family.
In September 2016, Ashley had three two-hour supervised visits with C.E.
each week. The Boys Town FSRP (family safety, risk and permanency) worker
allowed Ashley’s mother and sister to attend the interactions. According to the
FSRP reports, Ashley struggled with calming C.E. when he was fussy and
passed him to her mother when he cried. On September 22, 2016, the juvenile
court adjudicated C.E. as a child in need of assistance (CINA) under Iowa Code
section 232.2(6)(c)(2) (2016).
4
In late September 2016, Ashley underwent a second psychological
evaluation—this time with Dr. Jamie Ryder. While noting possible underreporting
of negative information by Ashley, Dr. Ryder developed an overall impression
that Ashley met the criteria for an unspecified adjustment disorder—due to
“stressful situations related to DHS involvement with her children and not having
either of her children in her custody at this time.” In closing, the psychologist
asserted: “At this time, there is no information present to me through the course
of this evaluation or otherwise that would suggest she is not capable of
successfully parenting her children.”
In October 2016, Ashley cancelled six of twelve scheduled visits with C.E.
In its dispositional order in late October, the juvenile court determined Ashley had
not offered any legitimate reasons for cancelling visits, and the court suspected
she may have been focusing more on her boyfriend than her son. The court also
noted the contradictory findings from Dr. Jones-Thurman and Dr. Ryder, musing:
“It is almost as if two different people were the subject of the psychological
evaluations.” The court decided “it would be helpful to have an updated
psychological evaluation” from Dr. Jones-Thurman because Ashley’s
“circumstances have changed” since her original evaluation.
Ashley underwent her third psychological evaluation on January 17, 2017.
Dr. Jones-Thurman initially reviewed her September 2015 findings when she
diagnosed Ashley with “ADHS, Unspecified Depressive Disorder, and Mild
Intellectual Disability.” In Dr. Jones-Thurman’s second evaluation, Ashley scored
in the average to below-average range on IQ tests. Dr. Jones-Thurman’s second
report found Ashley to be more emotionally stable, “despite her cognitive
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limitations.” Dr. Jones-Thurman still was not sure Ashley could parent her child
without any help, but encouraged the DHS to give Ashley the opportunity to try
“to help raise her son.”
The juvenile court held a permanency hearing in early March 2017. In its
order, the court discounted the value of the psychologists’ reports: “Frankly, from
the [c]ourt’s perspective, the three evaluations submitted are not that useful to
the [c]ourt’s determination as to what the permanency goal should be. Each
report is vastly different from the prior report making it difficult to find any of them
are dispositive on this topic.” The court instead focused on the inconsistency in
Ashley’s visits with C.E., noting she had missed more than half of the scheduled
visits in the most recent reporting period. The court also expressed concern
about disruptive behaviors repeatedly exhibited by members of Ashley’s family,
to the extent that the police had been called to intervene. Finally, the court
recounted Ashley’s continued difficulty in retaining “education provided to her
regarding parenting skills” and inability to follow through with suggestions
provided to ensure C.E.’s safety. The court set a permanency goal of adoption.
On April 10, 2017, the State filed its petition to terminate parental rights.
In a May 17 report to the court, the DHS worker wrote: “Ashley needs to have an
updated assessment of her apraxia diagnosis and to what extent this may or may
not interfere with her ability to parent or limitations she may experience in
attempting to learn child-rearing related skills.” At the May 25 termination
hearing, Ashley’s attorney established that the DHS worker misunderstood
apraxia to be a cognitive diagnosis rather than a motor-skill disorder.
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The juvenile court issued its termination decision on June 9. The court
based its termination of Ashley’s parental rights on Iowa Code section
232.116(1)(e) and (h).3 Ashley now appeals.
II. Analysis of Mother’s Arguments
A. Clear and Convincing Evidence of Inability to Reunite
Ashley claims the State offered insufficient evidence to satisfy the
statutory grounds for terminating her relationship with C.E. Where the juvenile
court has terminated a parent’s rights on more than one ground, we need only
find termination proper under one section to affirm. In re J.B.L., 844 N.W.2d 703,
704 (Iowa Ct. App. 2014). In this case, we find the juvenile court properly
terminated Ashley’s parental rights under section 232.116(1)(h). This section
provides for termination if the State proves the following elements by clear and
convincing evidence:
(1) The child is three years of age or younger.
(2) The child has been adjudicated a [CINA] pursuant to
section 232.96.
(3) The child has been removed from the physical custody of
the child’s parents for at least six months of the last twelve months,
or for the last six consecutive months and any trial period at home
has been less than thirty days.
(4) There 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).
Ashley challenges only the fourth element, asserting C.E. can be returned
to her care because she has maintained a suitable home and employment and
has complied with court-ordered services. She contends the weight given to the
3
Although C.E.’s paternity had not been established, the court also terminated the rights
of any putative father.
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September 2015 evaluation—compounded by the mistaken view of the DHS
workers that her apraxia was a cognitive disability—prevented her from moving
to unsupervised visitation with C.E.
We find the evidence in the record satisfied the fourth element of
subsection (h). According to the May 2017 DHS report to the court, Ashley was
“dependent on her parents for financial management, financial support, and
transportation.” Ashley moved several times during the CINA case; she was
unemployed and living with her parents at the time of the termination hearing.
The DHS worker testified she had safety concerns about that household. Ashley
never progressed beyond fully supervised visitation because the FSRP workers
lacked confidence in her ability to attend to C.E.’s needs and ensure his safety.
Given these circumstances, termination under section 232.116(1)(h) was
appropriate. See In re A.M., 843 N.W.2d 100, 111 (Iowa 2014) (affirming
termination where record indicated “after a year of services, the parents were still
not in a position to care” for child). We reject Ashley’s assertion that her first
psychological evaluation or misconceptions about apraxia impacted the ultimate
decision to terminate her parental rights.
B. Reasonable Efforts
Once again pointing to Dr. Jones-Thurman’s original views and the DHS
worker’s misunderstanding of apraxia, Ashley argues the DHS “never gave her
the benefit of the doubt” when offering reunification services. The DHS is
required to make every reasonable effort to return a child to his home—
consistent with the child’s best interests. Iowa Code § 232.102(7); In re C.B.,
611 N.W.2d 489, 493 (Iowa 2000). If a parent does not request additional
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services at an appropriate time, we may find the parent has waived the argument
that DHS did not make reasonable efforts. In re C.H., 652 N.W.2d 144, 148
(Iowa 2002). Assuming without deciding Ashley’s reasonable-efforts argument
was preserved, we find the DHS met its requirement to offer reasonable
reunification services.
The DHS worker’s misunderstanding of Ashley’s apraxia diagnosis did not
impact the services provided. The FSRP reports offered as exhibits identify as
“needs” that Ashley had been diagnosed with both apraxia and intellectual
disability. The reports emphasized: “It will be important for Ashley to continue
working with professionals to accurately understand [C.E.’s] developmental
stages and potential safety concerns that accompany each stage.”
At the termination hearing, the DHS social worker clarified it was not
Ashley’s speech impediment that caused concern:
The issue here is not lack of communication or lack of
understanding what Ashley is saying. Ashley can’t do it. She is not
able to demonstrate independently how to meet her child’s basic
needs through her actions and her activity with her child, when you
observe it, when you sit beside her and observe it, she is not able
to do it without a lot of redirection and coaching.
Similarly, the record does not support Ashley’s allegation that Dr. Jones-
Thurman’s September 2015 opinion dampened the DHS drive to offer services
that would led to reunification with C.E. The DHS was aware of all three
evaluations and acted accordingly. The DHS May 2017 report to the court
discussed the psychologist’s more positive January 2017 view: “Dr. [Jones-]
Thurman also recommended that Ashley be given more opportunities to parent
her child. Despite the Department’s efforts to increase interactions, due to
9
Ashley’s lack of participation in consistent interactions with [C.E.], the
Department has been unable to increase.” The record affirms Ashley did not
take full advantage of the services offered. She was inconsistent in attending
visitations and failed to maximize contact with her son. We are unconvinced by
her reasonable-efforts argument.
C. Best Interests
Ashley next argues termination is not in C.E.’s best interests because “it
would deprive the child of the opportunity to be raised by [his biological] mother.”
Of course, that generic assertion is at play in every termination-of-parental-rights
case. Our best-interests analysis must track Iowa Code section 232.116(2). See
In re P.L., 778 N.W.2d 33, 40 (Iowa 2010) (rejecting court’s use of an
unstructured best-interests test). That provision focuses our attention on the
child’s safety; the best placement for furthering his long-term nurturing and
growth; and his physical, mental, and emotional condition and needs. See Iowa
Code § 232.116(2). According to the record, C.E. has been receiving quality
care in his foster home and would be a good candidate for adoption. Here, the
guardian ad litem supported termination, emphasizing Ashley had trouble
retaining the parenting skills she had been taught and could not offer a safe
environment for her young son.
By the time of the termination hearing, C.E. had been in foster care for
eleven months, virtually since he was born. We conclude the child’s safety and
his physical and emotional needs will be best served by terminating Ashley’s
parental rights and allowing C.E. to move toward a permanent home.
AFFIRMED.
In the Interest of C.E., Minor Child, A.E., Mother
Combined Opinion