July 10, 2017
Caveat on GAL in CINA matter: SPD will not pay for a GAL for a parent in a CINA matter unless they are incarcerated. I suppose you could ask for a GAL and see if they pay for it through court-ordered funds. Not sure they will though.
July 10, 2017
You can ask to have a GAL appointed for her if you think she's not able to participate in your work together. I would start by asking for an evaluation in the juvenile court to determine her mental status (a full psychological evaluation) and then request services accordingly. Parents don't have to be perfect - they have to be minimally adequate. It is the State's job to provide services to alleviate the issues that prevent safe parenting.
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Incompetency under 812 does not automatically mean that someone is incapable of being a “minimally adequate parent,” as is the standard in CINA cases. Under 812, the grounds for incompetency are that the defendant cannot appreciate the charge, understand the proceedings, or assist effectively in their defense. Even if they are found to be incompetent at the time, competency can be restored through treatment, so an incompetency finding should not be a de facto negative for your client.
What is more important in the CINA context is a reasonable efforts argument. There are two ways to look at reasonable efforts in the competency context. 1.) If their incompetency affects their ability to participate in appropriate services offered, and 2.) If, because of their mental state, the services offered are not reasonably tailored to prevent removal or to reunify the family under 232.102(10). It is highly likely if DHS is offering your client cookie cutter services, that she will be unsuccessful. There is no specific list of what “reasonable efforts” are, so ask DHS and the Court (preferably in a motion) for anything that will reasonably lead to reunification. It may be as simple as asking the court to order DHS or FSRP to sit down with your client and help them make appointments or fill out applications, instead of them just telling your client, “Go do this…” You can also ask for a competency evaluation through the CINA case as a reasonable effort, if you want a third opinion.
Lastly, if it came to it, juvenile court cannot TPR someone just because of a diminished mental status. But if mental functioning affects the child’s welfare, it is a big consideration at the time of TPR. Two cases to look at are: In re A.M. 843 N.W.2d 100 (Iowa 2014) and In re D.W. 791 N.W.2d 703 (Iowa 2010). You might also have a good argument for guardianship over TPR as in In re B.T. No. 17-0093 (Iowa App. April 5, 2017).
I represent a mother in a CINA case in which the child was adjudicated a child in need of assistance based on mother's admissions to drug use. The child has been placed in foster care and the review hearing is in a few months. My client has some ongoing criminal cases that were opened before the CINA case, and her defense attorney is asserting she is incompetent to stand trial in those matters. The State and defense attorney had competency evaluations done and reports have been filed in the criminal cases. The State and defense also entered into a stipulation allowing the competency reports to be used as exhibits in the CINA case. Of course one report finds her competent and the other says she's incompetent; a ruling has not yet been issued on her competency.
I haven't dealt with this issue before but I'm sure an incompetency finding would be detrimental to her in the CINA case. What is the best way to proceed with the competency issue in the CINA case?
Thank you.
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