Opinion
No. 2-034 / 01-1074.
Filed February 6, 2002.
Appeal from the Iowa District Court for Muscatine County, J. HOBART DARBYSHIRE, Judge.
T.K. contends the juvenile court should have placed E.G. with her, not with the child's father. AFFIRMED.
Roland Caldwell of Muscatine Legal Services, Muscatine, for appellant-mother.
Thomas J. Miller, Attorney General, Tabitha Gardner, Assistant Attorney General, and Patricia Rolfstad, Assistant County Attorney, for appellee.
Douglas Johnston, Muscatine, for father.
Esther Dean, Muscatine, for minor child.
Considered by SACKETT, C.J., and ZIMMER and VAITHESWARAN, JJ.
This appeal concerns the placement of Ethan, a child born to Tiffany and Ryan in July of 1998. Ethan's parents never married but lived together for a short time. The relationship apparently ended when Ryan was charged with domestic abuse. Ethan remained in Tiffany's care. In late January of 2000 Ethan's paternal grandparents Donna and Kenny visited Ethan while Tiffany was working. They became concerned about the state of Ethan's health and decided to take Ethan to a hospital. They contacted Tiffany at work and she went with them.
Ethan was admitted to the University of Iowa Hospitals and Clinics on January 31, 2000. There it was determined Ethan had multiple lacerations on his spleen and edema on his pancreas. In addition there was bruising on his left flank, with finger marks visible, and additional bruising. The doctors who saw Ethan were of the opinion Ethan had been physically abused and had blunt trauma injuries consistent with his being in a car accident. There was an indication the child would have died if the injuries had not been treated.
Tiffany contended Ethan was injured in an accidental fall against a bed rail some eight or nine days earlier. The physicians treating Ethan determined the injuries were not consistent with this history.
At the time the injuries occurred Ethan had been in the care of his mother, her boyfriend, her boyfriend's sixteen-year-old daughter, and friends of the mother. The perpetrator of Ethan's injuries has never been specifically identified. Ryan has been excluded as a possible perpetrator. There was evidence that Ethan had also been injured at a prior time while in Tiffany's custody.
An ex parte order was issued on February 2, 2000, and Ethan was placed in the custody of his paternal grandmother Donna. Ethan was found to be a child in need of assistance on the basis of Iowa Code section 232.2(6)(c)(2) (1999) on March 30, 2000, and he remained in Donna's custody. On June 15, 2000 Donna was granted permission to intervene in the case.
During the approximately next fifteen months Ethan remained in Donna's care. Ethan lived at his paternal grandparent's farm home with Linda, Ryan and Kenny, the grandfather. During the time there Ethan has received excellent care.
Numerous services were offered Tiffany, and case plans were established aimed at assisting her in regaining Ethan's care.
Ultimately, on May 31, 2001 the juvenile court entered a permanency order transferring Ethan's care from his grandmother Donna to his father Ryan. The juvenile court in entering the order found that Lutheran Social Services and Ethan's guardian ad litem were in agreement that Tiffany had made progress in meeting the goals established for her in previous dispositional orders with the exception that they were of the opinion Ethan would not be safe in Tiffany's custody. The juvenile court noted Ethan had suffered serious life threatening physical injuries considered by medical providers to have resulted from child abuse. The court noted the perpetrator of those injuries had not been identified except that Ethan's father Ryan has been excluded as a possible suspect. The court further noted Tiffany continues to be a suspect and she has refused to cooperate with the investigation into the injuries. The court noted Tiffany testified at the permancy hearing she believed the injuries were inflicted by her boyfriend's sixteen-year-old daughter. The court found this did not relieve its fear that Tiffany remains an unsuitable choice as a custodian for Ethan and noted evidence that Tiffany continues to exhibit poor judgment in allowing people she knows little about to stay in her apartment.
The court went on to find Ryan resides with his parents and has since January of 2000. The court noted Ryan requested parental skill development services, completed substance abuse treatment and is participating in aftercare. The court further found Ryan has a strong relationship with his parents and that he and Ethan plan to continue residing in Ryan's parents' home for the time being. The court found that Lutheran Social Services provided parenting services to Ryan, and the caseworker assigned observed Ryan's parenting skills had improved, his interaction with Ethan was appropriate and he had made positive changes to his lifestyle to help him be a good parent.
Ethan remains a child in need of assistance, and the juvenile court also ordered that he remain subject to the protective supervision of the Department of Human Services until further order. The juvenile court gave the district court concurrent jurisdiction for the purpose of establishing custody, support and visitation consistent with this case or when juvenile court jurisdiction is terminated.
Tiffany contends (1) Ethan should have been returned to her as she showed he would not suffer from harm that would justify his being found to be a child in need of assistance, and (2) the juvenile court was incorrect in compelling her to participate in an investigation before returning Ethan to her care.
Our review of the record causes us to confirm the juvenile court's findings. We note that Tiffany did make an effort to improve her skills to regain custodial care of her son, and we commend her for it. Unfortunately, although Tiffany sought treatment for her substance abuse addiction, she has had serious relapses.
Appellate review of permanency order is de novo. In re N.M., 528 N.W.2d 94, 96 (Iowa 1995). We give weight to the findings of facts made by the juvenile court, especially those involving the credibility of witnesses, but we are not bound by those findings. Iowa R. App. P. 14(f)(7); see In re L.G., 532 N.W.2d 478, 481 (Iowa 1995). A parent who seeks to have his or her child returned after the child was removed and found to be a child in need of assistance has the burden of proving by a preponderance of the evidence that the child will not suffer harm if returned to the parent or parents' home. See In re D.S., 437 N.W.2d 587, 588 (Iowa Ct. App. 1982). Our review of the evidence convinces us that the juvenile court correctly found Tiffany did not meet this burden, but that Ryan did.
Tiffany also contends that the juvenile court ordered her to participate in an investigation of Ethan's injuries as a condition for Ethan to be placed with her in the future. We recognize that the juvenile court exhibited concern about Tiffany's failure to assist in identifying the perpetrator of Ethan's injuries. We also have the same concern. We agree with the State, however, that the juvenile court's order does not require Tiffany to assist in the investigation as a condition of Ethan's future placement with her. We therefore do not address this argument. Ethan has been placed with his father, the better parent. We affirm the juvenile court in all respects.
AFFIRMED.