In the Interest of J.L., Minor Child, V.L., Mother

IN THE COURT OF APPEALS OF IOWA

No. 15-0539
Filed June 10, 2015

IN THE INTEREST OF J.L.,
Minor Child,

V.L., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Floyd County, Karen K. Salic,

District Associate Judge.

A mother appeals the termination of her parental rights to her child, born in

2014. REVERSED AND REMANDED.

David A. Kuehner of Eggert, Erb, Mulcahy & Kuehner, P.L.L.C., Charles

City, for appellant mother.

Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant

Attorney General, and Rachel Ginbey, County Attorney, for appellee State.

Cynthia Schuknecht of Noah, Smith & Schuknecht, P.L.C., Charles City,

attorney and guardian ad litem for minor child.

Considered by Danilson, C.J., and Vaitheswaran and Doyle, JJ.
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VAITHESWARAN, J.

A mother appeals the termination of her parental rights to her child, born in

2014. She raises several issues, one of which we find dispositive: “the failure of

the Department of Human Services to provide a sign language interpreter . . .

knowing she was hearing impaired.”

I. Background Facts and Proceedings

According to the mother, she was “born deaf.” After she gave birth to her

son, she showed tendencies toward depression and suicide. The hospital

evaluated her, determined she was not a danger to herself or her child, and

released her, but not before contacting public service agencies to evaluate and

assist her.

The department obtained the mother’s consent to provide “safety

services.” Those services were slated to run for fifteen days but were extended

to thirty days. From the outset, the department social workers assigned to the

case knew of the mother’s hearing impairment and knew she used sign

language. The department did not assign her an interpreter to facilitate the

“safety services,” electing instead to communicate with her in writing. One of the

social workers characterized the process as “very difficult.”

When the child was one month old, the State filed a child in need of

assistance petition. The petition alleged the mother was “deaf and mute and

communication is difficult.” The petition further alleged the mother lacked basic

parenting skills. The child remained with his mother for a month after the petition

was filed. During this period, the department did not provide services because

the child had yet to be adjudicated in need of assistance.
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When the child was two months old, the juvenile court ordered his

temporary removal from the mother. The order required an American Sign

Language interpreter for the hearing on the removal order. The department did

not provide similar interpretive services despite the fact its report filed within

twenty-four hours of the removal order stated the mother wrote “notes back and

forth to communicate and her conversation skills appeare[d] like that of someone

lower functioning.”

Within two weeks of the removal order, the mother’s attorney moved for

reconsideration of the order, asserting, in part, that the mother “is deaf and mute

and at no time has the Department involved an interpreter to assist with her

communication with [the department and service] provider or the doctor involved

in these services despite the Americans with disabilities act.” In response, the

juvenile court ordered “[t]he Department and providers” to “make every

reasonable effort to ensure that an interpreter is available for [the mother] during

the provision of services.” No interpreter was immediately furnished. By this

time, the child was three months old.

The department first furnished an interpreter at a family team meeting and

a supervised visit scheduled for the week before a delayed adjudicatory hearing.

The juvenile court’s adjudication order concluded the department made

reasonable efforts to reunify the family. As of the date of the order, four months

had elapsed since the child’s birth and the department’s involvement.

When the child was seven months old, the State filed a petition to

terminate the mother’s parental rights. At a hearing on the petition, the mother’s

attorney again raised the department’s failure to timely furnish interpreter
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services. The court framed the issue he raised as “reasonable effort[s] have not

been made to reunify [her] with her child, in particular that interpreter services

were not provided.” While the court expressed frustration at the delay in

provision of interpreter services, the court stated access to hearing-impaired and

other services was more difficult in their “rural area” and “reasonable attempts to

adapt to the circumstances to meet the ultimate goal of reunification often must

be used until the access obstacles are overcome.” The court also stated the

mother “communicated freely through written” notes and sought clarification

when necessary. Finally, the court cited the availability of interpreter services for

the final four-and-a-half months of the proceedings and stated the real obstacle

to reunification was the mother’s decision to do “whatever she wants.” The court

terminated the mother’s parental rights pursuant to two statutory provisions. At

the time of termination, the child was eight months old.

The mother timely filed a motion for new trial pursuant to Iowa Rule of Civil

Procedure 1.1004. See Iowa R. Civ. P. 1.1007 (stating new trial motions under

rule 1.1004 “must be filed within fifteen days after filing of the . . . decision”). She

asserted the juvenile court impermissibly terminated her parental rights pursuant

to a statutory provision not alleged in the State’s termination petition. The

juvenile court denied the motion on the ground the mother’s parental rights were

also terminated under a separate provision alleged in the petition—Iowa Code

section 232.116(1)(h) (2015). The mother filed a notice of appeal within fifteen

days of the denial order.
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II. Jurisdiction of Appeal

Iowa Rule of Appellate Procedure 6.101(1)(a) governs the timeliness of

appeals from termination-of-parental rights decisions. It states:

A notice of appeal from a final order or judgment entered in Iowa
code chapter 232 termination-of-parental-rights or child-in-need-of-
assistance proceedings must be filed within 15 days after the filing
of the order or judgment. However, if a motion is timely filed under
Iowa R. Civ. P. 1.904(2) or Iowa R. Civ. P. 1.1007, the notice of
appeal must be filed within 15 days after the filing of the ruling on
such motion.

As a preliminary matter, the State contends this court “lacks jurisdiction of

the matter because the notice of appeal was not timely filed.” The State

concedes the notice was filed within fifteen days of the juvenile court’s denial of

the new trial motion but asserts the motion “was vague and without merit and,

therefore, was insufficient to toll the time for filing a notice of appeal.”

Iowa Rule of Civil Procedure 1.1004 authorizes a new trial in several

situations, including where “the verdict, report or decision is not sustained by

sufficient evidence, or is contrary to law,” or where there are “[e]rrors of law

occurring in the proceedings, or mistakes of fact by the court.” Iowa R. Civ. P.

1.1004(6), (8). The mother cited the rule and pointed out the court’s error in

relying on an unpled statutory termination ground. Although the mother did not

specifically refer to subsections 6 and 8 of rule 1.1004, the juvenile court clearly

understood the gravamen of her motion and, while declining to grant a new trial,

corrected its error.

The State notes the mother could have raised the error on appeal without

filing a posttrial motion. We agree. However, her decision to give the juvenile

court the first opportunity to correct the error does not render the motion
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improper. See generally Iowa Elec. Light & Power Co. v. Lagle, 430 N.W.2d 393,

395-96 (Iowa 1988) (stating “[a] district court’s power to correct its own perceived

errors has always been recognized by this court, as long as the court has

jurisdiction of the case and the parties involved”).

Nor does the label attached to the motion matter. Id. at 395 (“The label

attached to a motion is not determinative of its legal significance; we will look to

its content to determine its real nature.”). The point of the mother’s motion was

to have the court delete the unpled ground. The mother accomplished this goal

and the State concedes this was the correct outcome. We conclude the mother’s

motion for new trial was timely and proper and tolled the time for filing a notice of

appeal. See McKee v. Isle of Capri Casinos, Inc., __ N.W.2d __, 2015 WL

1874608, at *6-7 (Iowa 2015) (rejecting assertion that posttrial motion filed

pursuant to rule 1.904(2) was filed for an improper reason and failed to toll the

time for filing a notice of appeal); Sierra Club Iowa Chapter v. Iowa Dep’t of

Transp., 832 N.W.2d 636, 641-42 (Iowa 2013) (concluding rule 1.904(2) motion

tolled the time for filing notice of appeal where motion raised legal issues with

underlying issues of fact). Cf. In re Estate of Hord, 836 N.W.2d 1, 4-5 (Iowa

2013) (noting appellant’s argument that new trial motion was valid motion which

tolled time for filing notice of appeal if their rule 1.904(2) motion for enlarged

findings and conclusions was not, and concluding appeal time was tolled by latter

motion). Accordingly, we proceed to the merits.

III. Reasonable Efforts

The department has an obligation to make reasonable efforts to facilitate

reunification. See Iowa Code § 232.102(10); In re C.B., 611 N.W.2d 489, 493
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(Iowa 2000). Reasonable efforts play “a critical role . . . from the very beginning

of intervention.” C.B., 611 N.W.2d at 493. The reasonable efforts requirement is

“part of [the department’s] ultimate proof the child cannot be safely returned to

the care of a parent.” See id. at 492-93 (noting re-lettered provision contained an

element “which implicates the reasonable effort requirement”). See also Iowa

Code § 232.116(1)(h) (requiring proof of several elements including proof the

child could not be returned to the mother’s custody).

Our de novo review of the record reveals the following facts. According to

a department social worker called to the hospital following the child’s birth, a

nurse told her “communication with [the mother] is very difficult, as she is deaf

and mute. They communicate by writing notes, but sometimes what [the mother]

writes is difficult to understand.”

The social worker immediately tested the mother’s written communication

skills. The answers to her questions were at best off the mark. Nonetheless, the

department cited the mother’s written communication skills as a basis for

declining to hire an interpreter. Medical records obtained by the department

called the department’s decision into question.

A psychiatric discharge summary on the mother stated her “ability to

express ideas in writing appears somewhat limited.” The summary also indicated

“possible cognitive inefficiency, particularly with respect to verbal abilities.” While

finding the mother “better with hands-on visual task[s],” the summary also stated

“she might have problems when tasks are more complex or abstract.” Another

medical note stated the mother “has some speech which is very difficult to

understand. She communicates through writing which is, unfortunately, also
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difficult to understand.” A third medical note characterized the mother as

“hearing impaired, sign-language communicating.”

As discussed, the department was aware of the mother’s comfort with sign

language. Indeed, the department reported that the mother “loved” the fact one

of her friends used sign language with her. Despite this knowledge, the

department did not retain a sign language interpreter for four months.

Notably, the mother and a deaf advocate met with the department case

manager approximately three weeks after the department became involved to

review the services provided by the department. In response to their request for

a new visitation supervisor, the manager said the mother was ineligible for

“Targeted Case Management Services.” At the same time, the manager said the

mother could apply for those services because “she functioned just below

average level.” There is no indication the manager assisted her in completing

the application or facilitated the provision of these more intensive services with

the use of an interpreter.

At the termination hearing, the department case manager conceded the

importance of an interpreter, stating “it’s very helpful to have the interpreter

there.” She acknowledged she was “to provide clients with . . . their preferred

communication,” agreed she made no inquiry into the mother’s preferred method

of communication despite her knowledge of the mother’s facility with sign

language, and agreed the mother “repeated several times she want[ed] an

interpreter.”
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The visitation supervisor also testified it was easier to use an interpreter

than to communicate with the mother in writing. She acknowledged the mother

did not understand some of the written notes.

The mother’s deaf advocate testified she provided the department with a

list of local interpreters approximately two months after the child’s birth. She

further stated “if [the department] had provided interpreters earlier in the process,

it would have made a significant difference in her ability to make progress.”

Significantly, the department’s nondiscrimination policy, introduced at the

termination hearing, requires the department to ensure that “no person will be

excluded from participation in, be denied the benefit of, or be otherwise subjected

to discrimination for any services because of protected category status.” Iowa

Dep’t of Human Servs., Policy No. 1-D, Nondiscrimination, at 2 (2009), available

at http://dhs.iowa.gov/policy-manuals/administration. The department manual

highlights the importance of interpretative services in implementing this policy.

Id. at 3-5. The manual specifically holds the department responsible for

“[i]dentify[ing] translation and interpretation resources, including their location and

their availability” and “[a]rrang[ing] to have these resources available in a timely

manner” for those who “are unable to speak, read, write, or understand the

English language at a level that permits the person to interact effectively with

health and social services agencies and providers.” Id. at 2, 3. During fifty

percent of the department’s involvement, the mother lacked the key service

necessary to “interact effectively with health and social services agencies and

providers.” Id. at 2. The department’s refusal to furnish a sign language

interpreter immediately amounted to a violation of its statutory reasonable efforts
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obligation and a failure of proof on the statutory termination element cited by the

juvenile court. See Iowa Code § 232.116(1)(h).

Having concluded the department did not satisfy its statutory obligation to

make reasonable efforts towards reunification, we find it unnecessary to address

the mother’s contention that the department’s failure to provide interpretative

services also violated the Americans with Disabilities Act (“ADA”). In declining to

reach this issue, we have canvassed opinions addressing both statutes. Certain

states view the obligations under each statute as co-extensive. See J.H. v.

State, Dep’t of Health & Soc. Servs., 30 P.3d 79, 86 n.11 (Alaska 2001) (noting

Alaska statutory requirement “that the department make reasonable efforts to

provide [mother] with family support services appears to be essentially identical

to the ADA’s reasonable accommodation requirement. Accordingly, we need not

independently address [the mother’s] ADA theory in disposing of her appeal”); In

re Terry, 610 N.W.2d 563, 570 (Mich. Ct. App. 2000) (finding no conflict between

ADA and Michigan’s Juvenile Code, which requires court to determine whether

agency made “reasonable efforts” to correct conditions that led to its involvement

and finding consistency between reasonable efforts requirement and reasonable

accommodation requirement of ADA). Certain others hold the termination statute

controls. See In re Torrance P., 522 N.W.2d 243, 245-46 (Wis. Ct. App. 1994)

(“The duty to make a diligent effort to provide court-ordered services is defined

by the TPR statutes and not the ADA. The ADA does not increase those

responsibilities or dictate how those responsibilities must be discharged. . . .

Because the ADA does not affect our inquiry of whether the County made a

diligent effort to provide [the father] with court-ordered services as required under
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[the Wisconsin termination statute], we do not determine whether the County

reasonably accommodated [the father’s] disability.”). Still others affirmatively

preclude parents from raising the ADA as a defense to a termination action but

address accommodation issues in the context of their reasonable efforts

requirement. See, e.g., In re Doe, 60 P.3d 285, 293 (Haw. 2002) (declining to

allow parent to raise violation of ADA as a defense to a termination proceeding

but noting department has obligation to make reasonable efforts to reunify parent

and child); In re C.M.S., 646 S.E.2d 592, 595 (N.C. Ct. App. 2007) (noting

because state statute required department to make reasonable efforts to prevent

or eliminate need for placement, ADA did not prevent state from terminating

mother’s parental rights).

Iowa has alluded to the ADA in several termination opinions. See

generally In re C.M., No. 04-1052, 2004 WL 1900100, at *2 (Iowa Ct. App. Aug.

26, 2004) (noting ADA “requires a public entity to make ‘reasonable

accommodation’ to allow a disabled person to participate in services”); In re K.K.,

No. 04-0166, 2004 WL 574685, at *1 (Iowa Ct. App. Mar. 24, 2004) (“assuming

without deciding the mother has a qualifying disability under the ADA” and

concluding department reasonably accommodated mother); In re A.M., No. 99-

420, 1999 WL 780586, at *3-4 (Iowa Ct. App. Sept. 29, 1999) (noting “under the

ADA, a public entity is prohibited from discriminating against a disabled person

by excluding him or her from participation in public services, programs, or

activities” and must make “reasonable accommodation”); In re C.M., 526 N.W.2d

562, 566 (Iowa Ct. App. 1994) (noting “[t]he ADA prohibits a public entity from

discriminating against a disabled person by excluding her from participation or by
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denying the benefits of public services, programs, or activities”) (citing 42 U.S.C.

§ 12132 (1993), which provides “Subject to the provisions of this subchapter, no

qualified individual with a disability shall, by reason of such disability, be

excluded from participation in or be denied the benefits of the services,

programs, or activities of a public entity, or be subjected to discrimination by any

such entity”). However, our appellate courts have not precisely defined the

relationship between the two statutes. See generally Jude T. Pannell,

Unaccommodated: Parents with Mental Disabilities in Iowa’s Child Welfare

System and the Americans with Disabilities Act, 59 Drake L. Rev. 1165 (2011);

Dale Margolin, No Chance to Prove Themselves: The Rights of Mentally

Disabled Parents under the Americans with Disabilities Act and State Law, 15

Va. J. Soc. Pol’y & L. 112 (Fall 2007); Teri L. Mosier, Note, “Trying to Cure a

Seven-Year Itch”: The ADA Defense in Termination of Parental Rights Actions,

37 Brandeis L.J. 785 (Summer, 1998-1999). Our disposition is not inconsistent

with prior Iowa authority.

We reverse the juvenile court’s termination of the mother’s parental rights

to her child and remand for an order pursuant to Iowa Code section 232.117(2)

dismissing the termination petition as to her.

REVERSED AND REMANDED.