Opinion
No. 5-801 / 05-1337
Filed November 9, 2005
Appeal from the Iowa District Court for Wapello County, William S. Owens, Associate Juvenile Judge.
The maternal grandfather, mother of both children, and the father of D.A. appeal from the permanency order continuing D.A. in foster care and placing Q.L. with his father. AFFIRMED.
Ryan J. Mitchell of Orsborn, Bauerle, Milani Grothe, L.L.P., Ottumwa, for appellant maternal grandfather.
William H. Appel, Jr., Ottumwa, for appellants mother of both children and the father of D.A.
Richard J. Hanson of Heslinga, Heslinga, Dixon Moore, Oskaloosa, for appellee father of Q.L.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, Mark Tremmel, County Attorney, and Jason Helm, Assistant County Attorney, for appellee State.
Gayla Harrison and Shannon J. Woods of Harrison, Moreland Webber, P.C., Ottumwa, guardian ad litem for minor children.
Considered by Sackett, C.J., and Vogel and Eisenhauer, JJ.
The maternal grandfather, the mother of both children, and the father of Dakota appeal from the juvenile court's permanency order continuing Dakota's placement in foster care for six months and placing Quinton in his father's sole custody. The parents contend the State did not make reasonable efforts to reunify the family. The grandfather contends that placing Quinton with his father instead of continuing his placement with the grandfather is not in Quinton's best interest. On de novo review, we affirm.
Melissa is the mother of Dakota, born in 1993, and Quinton, born in 1997. Joel is Dakota's father. Robert is Quinton's father. Kenneth is the maternal grandfather. Melissa has been diagnosed with panic disorder without agoraphobia, dysthymic disorder, somatization disorder, and personality disorder with passive aggressive personality traits. Dakota has been diagnosed with ADHD, moderate mental retardation, petit mal seizure disorder, and behavioral problems. Quinton was placed with his father for a time in 2000 following a founded child abuse report that he had been hit by either Melissa or Joel.
Her primary care physician stated she has fibromyalgia, panic disorder, rhinosinusitis, GI reflux, nicotine dependence, migraine headache, chronic low back pain, anorexia nervosa, low serum potassium, vitamin B12 folate deficiency, anxiety, and depression.
The children again came to the attention of the Department of Human Services (Department) in late 2004 because of allegations of child abuse. In early January 2005 the court issued an ex parte temporary removal order concerning Dakota because of the dangerous conditions in the home. In March the parties stipulated and the court found both Dakota and Quinton to be children in need of assistance pursuant to Iowa Code section 232.2(c)(2) (2005) (child is likely to suffer harm due to parent's failure to exercise care in supervising child) and (g) (parent fails to provide adequate food, clothing, or shelter). The court placed Dakota in foster care and placed Quinton with his maternal grandparents. The court ordered Melissa to participate in mental health appointments and follow all recommendations. She and Joel were directed to participate in family centered services and follow certain recommendations.
When not at school or in respite care, the children were kept locked in their bedrooms with only a bucket to use for a toilet. The home contained "a great amount of cat feces on the floors in the upstairs where the boys' bedrooms are located" and there was "an overwhelming stench" in the home from cat feces/urine and from human feces/urine in Quinton's room. Dakota's room had no light and the plexiglas window was caulked shut. Melissa's health basically prevented her from climbing the stairs to the upstairs where the boys' bedrooms were.
At the disposition hearing in May, the Department recommended placing Quinton with his father at the end of the school year. The maternal grandparents expressed their willingness to have Dakota placed with them. The court found changing placement of either child at that time was not in their best interest. It noted, however, that if Quinton could not be returned to Melissa's care at the time of the permanency hearing, it likely would be appropriate to place him with his father.
In July, seven-year-old Quinton went with his father to visit family in Connecticut and New Hampshire. While there, he revealed that his maternal grandfather had shown him "movies of men and women having . . . ya know . . . sex" and had told him about how babies were made and where they come from. Quinton was able to describe male and female genitalia and how they were used to make babies. It appears Quinton remained in his father's care upon their return to Iowa instead of returning to his maternal grandparents. Investigation of the allegations was not complete by the time of the permanency hearing at issue on appeal.
In August, the court held a contested permanency hearing. It found the children could not be returned to their mother's home at that time. It also found:
Quinton has been removed from the custody of his mother for more than eight months, and she is no closer to having him returned today than she was when he was removed. Given all of the facts presented it is time to establish permanency for Quinton, and the least restrictive alternative available appropriate, and in Quinton's best interests is that his legal custody be placed with his father.
That placement of Dakota in foster care is an appropriate placement for the child because it is the least restrictive, most family-like and most appropriate setting available, in close proximity to the child's parents and consistent with the best interest and special needs of the child.
The court ordered that Robert have sole legal custody of Quinton, that Dakota remain in foster care, and that the district court have concurrent jurisdiction "to consider appropriate custodial/visitation orders" regarding Quinton. Melissa, Joel, and Kenneth appealed.
Our review of permanency orders is de novo. In re N.M., 528 N.W.2d 94, 96 (Iowa 1995). "We review `both the facts and the law, and we adjudicate rights anew.'" In re A.M.H., 516 N.W.2d 867, 870 (Iowa 1994) (quoting In re T.A.L., 505 N.W.2d 480, 482 (Iowa 1993)). "Although we give weight to the factual determinations of the juvenile court, especially when considering the credibility of witnesses, we are not bound by them." Id.
Melissa and Joel contend the State failed to make reasonable efforts to reunify the family. They also have a heading in their petition for an "Issue II," but state no issue and cite only to Iowa Code section 232.102(5)(b). We deem any "Issue II" waived. See Iowa R. App. P. 6.14(1)( c).
Reasonable efforts. While the State has an obligation to provide reasonable reunification services, parents have the obligation to demand other, different, or additional services when the case plans are made. See In re S.R., 600 N.W.2d 63, 65 (Iowa Ct.App. 1999). Melissa and Joel advance that they have "cooperated with family centered services including parent skill, but have contended since removal, that those services have not been provided." The only evidence we find in the record that family centered services including parent skill development have not been provided is Melissa's testimony at the permanency hearing. Melissa also argues her "psychological condition requires more services," but does not identify any additional services needed. They note that Dakota is a "special needs child." They assert that supervised visits were "extremely limited."
The State and the guardian ad litem argue reasonable efforts were made to reunify the family, but that Melissa in particular was resistant to services and denies some of her problems. The State also asserts the issue was not preserved for our review.
We find the State made reasonable efforts both to prevent the children's removal and to reunify the family. To prevent removal, the State provided family centered services, family preservation services, and over 120 hours of supported community living and respite care monthly. To promote reunification, the State provided Melissa a psychological evaluation and recommended individual therapy; it provided supervised visitation, both in the home and elsewhere; it provided family centered services and individual skill development; and it provided mental health, behavioral, and school performance assistance to Dakota.
In a previous juvenile proceeding, Melissa and Joel completed a full family preservation program.
Kenneth, the maternal grandfather, contends changing Quinton's custody from him to Quinton's father, Robert, is not in Quinton's best interest. He denies the allegations he exposed Quinton to pornography. He claims Robert has a criminal history. Kenneth advances he is an appropriate caregiver and the court should not have placed Quinton with Robert.
The investigation of the allegations regarding pornography was not complete at the time of the permanency hearing. Therefore we do not consider the allegations in determining whether Quinton should be placed in his father's custody. The record before us contradicts Kenneth's claim Robert has a criminal history.
We do not suggest Kenneth has not been a good caregiver for Quinton. However, Iowa law raises a strong presumption a child's welfare will be best served in the care and control of its natural parents. Northland v. Starr, 581 N.W.2d 210, 212 (Iowa Ct. App. 1998). The burden of proof rests with the non-parent to rebut the presumption favoring the parent by establishing the parent is not a suitable parent and the child's best interests require he remain in the non-parent's care. Id. at 213. The juvenile court considered placing Quinton with his father at the dispositional hearing, but determined the time was not right. It noted, however, that if Quinton could not be returned to Melissa's care at the time of the permanency hearing, it likely would be appropriate to place him with his father.
Iowa courts have frequently decided disputes in which persons who have cared for the children of another have attempted to retain custody against the wishes of the natural parent. Northland, 581 N.W.2d at 212. The parents of a minor; or either of them, if qualified and suitable, shall be preferred over all others for appointment as guardian. Iowa Code § 633.559. Recognition that the non-parental party is an excellent parent to the child will rarely be strong enough to interfere with the natural rights of the parent. Northland, 581 N.W.2d at 212. Iowa courts have, in some cases, removed children from conscientious, well-intentioned custodians with a history of providing good care to the children and placed them with a natural parent. Id. We conclude Kenneth has not rebutted the presumption in favor of Robert.
We affirm the permanency order of the juvenile court in all respects.