Opinion
No. 4-457 / 04-0887.
July 14, 2004.
Appeal from the Iowa District Court for Polk County, D.J. Stovall, Judge.
Mother appeals the ruling denying her motion to modify placement of her minor child. AFFIRMED.
Thomas Graves, Des Moines, for appellant-mother.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, John Sarcone, County Attorney, and Andrea Vitzthum, Assistant County Attorney, for appellee-State.
Kimberly Ayotte, Des Moines, for child.
Considered by Vogel, P.J., and Hecht and Eisenhauer, JJ. Vaitheswaran, J., takes no part.
Krystle is the mother of E.E., born in September 2003. E.E. was voluntarily removed from her parents' home on October 14, 2003, after it was brought to the attention of the Department of Human Services (DHS) that Krystle had shaken and dropped the infant causing a skull fracture, and the father was using drugs. E.E. was placed in a reported non-adoptive foster home at the time of her removal. On January 27, 2004, E.E. was adjudicated in need of assistance (CINA) as to her mother under Iowa Code sections 232.6(b) (parent has physically abused or neglected child) and 232.6(c)(2) (child is likely to suffer harm due to parent's failure to exercise care in supervising child) (2003). E.E. remained in the care of her foster parents. On April 8, 2004, the father filed a motion to modify seeking placement of E.E. with a family member. Krystle subsequently joined in the motion. A hearing was held and on May 14, 2004, the district court denied the motion. Krystle appeals.
The father is not a part of this appeal.
A parent has the burden to show circumstances have so materially and substantially changed that the best interests of the child requires a change in custody. In re J.F., 386 N.W.2d 149, 152 (Iowa Ct.App. 1986). Our overriding concern in such cases is always the best interests of the child. In re K.N., 625 N.W.2d 731, 733 (Iowa 2001).
Although E.E. was removed from her parents' care in October 2003, when she was just six weeks old, it was not until mid-March 2004 the parents informed DHS that there were family members available for possible placement. The primary family member being considered for placement was Margaret, E.E.'s sixty-nine year old, maternal great-grandmother. Susan Lucas, a child and family resource specialist who worked with Krystle during her visits with the child, testified that E.E. was bonded with her foster parents and did not want to leave them when it was time for her to go to her visits with her biological parents. Lucas also testified that although Margaret transported Krystle to and from approximately half of the supervised visits, Margaret's contact with E.E. was minimal. This is understandable as the visits focused on the relationship between Krystle and E.E., with Margaret as a mere observer. The result, however, was very limited bonding between E.E. and Margaret. In addition Lucas expressed concern that considering the abuse E.E. had suffered, removing her from the foster home at this time would cause her to suffer from an attachment disorder, affecting her ability to develop relationships for the rest of her life. Margaret also testified at the hearing, stating that she felt it was important to have E.E. placed in a family member's home rather than foster care. Krystle asserts that E.E. should be placed with Margaret now, so that if the State terminates her parental rights, E.E. would already be in a permanent placement with Margaret. Krystle also relies on Iowa Code section 232.116(3)(a) stating that a court need not terminate parental rights if the child is in the legal custody of a relative. However, the record does not contain any evidence that E.E. would be placed with Margaret or any family member in the case of termination.
As the district court stated in its ruling, we are "required to balance the desire for a child to be raised by a blood relative against the trauma associated with uprooting the child from a foster family with whom the child has established a substantial bond." The court also found that "the only justification for disruption of the bond at this time would be for purposes of reuniting the child with her natural parents." Unfortunately, Margaret did not come forward to offer her home as a placement for E.E. at or near the time of removal. With the passing of each day, E.E. became more bonded with the foster family and further removed from any family members. Even if this foster home is not a preadoptive placement, we do not find Krystle has met her burden to show a material change of circumstances justifying uprooting this child to yet another placement at this time. See J.F., 386 N.W.2d at 152. We agree with the district court it is in the best interests of E.E. to deny the petition to modify placement.