Opinion
No. 5-621 / 05-1125
Filed November 9, 2005
Appeal from the Iowa District Court for Appanoose County, William S. Owens, Associate Juvenile Judge.
The parents appeal from an order leaving their four children in the custody of their paternal aunt and uncle. AFFIRMED.
Ryan J. Mitchell of Osborn of Bauerle, Milani Grothe, L.L.P., Ottumwa, for appellants mother and father.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, and Robert Bozwell, County Attorney, for appellee State.
Jonathan Willier, Centerville, guardian ad litem for minor children.
Considered by Sackett, C.J., and Hecht and Vaitheswaran, JJ.
Mark and Amy are the parents of Curtis, born in 1988, Michael, born in 1989, Melissa, born in 1992, and Gage, born in 1994. The family first came to the attention of the Iowa Department of Human Services in November of 2003 when the children were removed from their parents' home. The children were later placed in the legal custody and guardianship of their paternal aunt and uncle. In May of 2004, the children were found in need of assistance pursuant to Iowa Code sections 232.2(6)(c)(2) and (n) (2003) and their placement with their aunt and uncle was continued. On June 23, 2005, the matter came before the juvenile court for a permanency review hearing. Following that hearing, the court entered an order confirming the previous permanency order and maintaining the children's placement with their aunt and uncle. Mark and Amy appeal from this order.
Our review of a motion to modify a permanency order is de novo. In re N.M., 528 N.W.2d 94, 96 (Iowa 1995). Iowa Code section 232.104(5) states:
Subsequent to the entry of a permanency order . . . the child shall not be returned to the care, custody, or control of the child's parent or parents, over a formal objection filed by the child's attorney or guardian ad litem, unless the court finds by a preponderance of the evidence, that returning the child to such custody would be in the best interest of the child.
Iowa Code § 232.104(5). Moreover,
[o]ur responsibility in a modification of a permanency order is to look solely at the best interests of the child for whom the permanency order was previously entered. Part of that focus may be on parental change, but the overwhelming bulk of the focus is on the child and their needs.
In re A.S.T., 508 N.W.2d 735, 737 (Iowa Ct.App. 1993) (emphasis added). We give weight to the juvenile court's findings of fact, especially when considering the credibility of witnesses, but are not bound by them. Iowa R. App. P. 6.14(6)( g).
On appeal, Mark and Amy contend that maintaining the children's current placement is not in the children's best interests. In particular, Mark and Amy contend custody of all the children should be restored to them now. In the alternative, if it is determined that custody cannot be immediately restored, Mark and Amy contend the youngest child, Gage, should be placed with relatives closer to Council Bluffs where Mark and Amy currently reside. Upon our de novo review we agree with the juvenile court's findings, conclusions, and resulting order and therefore affirm.
Mark and Amy previously were heavily involved in drug use and repeatedly exposed their children to the ravages of a destructive lifestyle. Mark reported a decade-long history of intermittent crystal methamphetamine use. The record contains evidence tending to establish that Mark and Amy have made commendable efforts to reclaim and redirect their lives during the last two years. To their substantial credit, they both completed drug treatment, obtained and maintained employment, and became active members of a church after the children were removed. An evaluation conducted in October of 2004 revealed the home of Mark and Amy was free of illegal substances. Notwithstanding these considerable positive developments in their lives, we cannot conclude on this record that it is in the children's best interests to modify the permanency order.
Since the permanency hearing in December of 2004, Mark and Amy only had five visits with the children. Although family therapy was recommended in furtherance of the reestablishment of the children's trust in their parents, Mark and Amy failed to follow the recommendation. Mark and Amy explain these circumstances by reference to the demands of their employment, the distance between Council Bluffs and the distant location of the children's placement, and the expense of transportation. Although these circumstances are real, and we do not discount them, they have impeded the restoration of a healthy parent-child relationship. This is evidenced by the expressed preference of Curtis, Michael, and Melissa who wish to continue living with their uncle and aunt who now serve as their foster parents. The children's positions with regard to reunification are undoubtedly affected by the fact that the current placement provides a safe, stable, and wholesome environment which was not provided by Mark and Amy during a long period of time before the children were removed. The children are understandably deeply skeptical about their parents' prospects for remaining drug-free and providing a stable and healthy home environment. The four children are thriving under their aunt and uncle's care, doing very well academically, participating in community activities, and building friendships. Notably, the children's therapist recommends continued placement with their aunt and uncle, as does their guardian ad litem. We conclude Mark and Amy have not met their burden to prove by a preponderance of the evidence that the permanency order should be modified to reunify the family at this time.
We acknowledge the evidence that the youngest child, Gage, would prefer to return home to live with Mark and Amy, but he is not unhappy with the current placement with his uncle and aunt. Despite Gage's preference, we are not persuaded that it is in his best interest to be separated at this time from his siblings.
Mark and Amy alternatively contend Gage should be relocated to live with an uncle and aunt who live in Council Bluffs. A home study conducted by a DHS representative found no "compelling reasons to disapprove" of the proposed placement after observing no "safety issues" in the home. Although this evidence suggests the proposed alternative relative placement might provide a suitable environment for Gage, we are not persuaded that the child's best interests would be served by modification of the permanency order. As we have noted, all of the children are doing well in their current placement. A preponderance of the evidence establishes that Gage, who shares a close bond with his siblings, should not be separated from his brothers and sister. We find Mark and Amy have not met their burden to prove by a preponderance of the evidence that it is presently in Gage's best interest to disrupt his current placement and relocate him with relatives closer to Mark and Amy's residence in Council Bluffs. Given the strong evidence that Gage and his siblings are thriving in their current placement, we share the juvenile court's determination that the permanency order should not be modified at this time.
In conclusion, we conclude Mark and Amy have not met their burden to prove that reunification is in the children's best interests. We also conclude Mark and Amy did not meet their burden to prove by a preponderance of the evidence that the permanency order should be amended to relocate Gage with relatives closer to Mark and Amy's residence in Council Bluffs. We therefore affirm the juvenile court's decision rejecting the petition of Mark and Amy to modify the permanency order in this case.
AFFIRMED.
Vaitheswaran, J., concurs; Sackett, C.J., dissents.
I dissent. The children should be reunited with their parents.
The law raises a strong presumption that a child's welfare is best served in the care and control of the child's parents. Zvorak v. Beireis, 519 N.W.2d 87, 88 (Iowa 1994). Recognition that a nonparent is an excellent parent is rarely strong enough to interfere with the rights of birth parents, and it should not be so here. See Northland v. Starr, 581 N.W.2d 210, 212 (Iowa Ct. App. 1998).