Opinion
No. 3-569 / 03-0499
Filed August 13, 2003
Appeal from the Iowa District Court forScott County, James A. Weaver, District Associate Judge.
Mother appeals from CINA dispositional order. AFFIRMED.
Cheryl Newport of Newport Newport, P.L.C., Davenport, for appellant mother.
Brett Nelson of Nelson, Keys Keys, Rock Island, IL, for father.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, William Davis, County Attorney, and Gerda Lane, Assistant County Attorney, for appellee.
John Molyneaux, Davenport, Guardian ad Litem.
Christine Fredericks, Davenport, for minor child.
Considered by Vogel, P.J., and Mahan and Zimmer, JJ.
Penny R. appeals from child in need of assistance (CINA) order placing her daughter in the custody of Gabriel R., the father. We affirm.
Background Facts. Penny and Gabriel are the parents of Gabriela, born January 16, 2000. The couple separated in February 2002 with dissolution proceedings pending at the time of hearing. Penny also has two older sons, Justin born in August 1989 and Jacob born in January 1991, who are not directly involved in this appeal. Because of behavioral problems, Justin was in placement at the time of hearing while Jacob remained in Penny's care. On December 11, 2002, in an uncontested hearing, Gabriela and Jacob were adjudicated in need of assistance pursuant to Iowa Code section 232.2(6)(c)(2) (Supp. 2001) (child is likely to suffer harm due to parent's failure to exercise care in supervising child). After a dispositional hearing on February 6, 2003, the juvenile court placed Gabriela in the care and custody of her father, Gabriel but ordered Jacob to remain in Penny's custody.
Penny appeals the dispositional order asserting there was no evidence of any risk of harm to Gabriela if she were left in Penny's custody, Gabriela is at risk of harm in her father's custody, Gabriela's best interests are to keep her with her half-brother, and finally, the juvenile court was without authority to treat a juvenile disposition hearing as a dissolution custodial case.
Scope of Review. We conduct a de novo review of CINA proceedings. In re H.G., 601 N.W.2d 84, 85 (Iowa 1999). We give weight to the fact findings of the juvenile court, especially when considering the credibility of the witnesses, but we are not bound by these findings. Iowa R.App.P. 6.14(6)( g). 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).
Risk of Harm. Penny claims there was no evidence Gabriela was at risk of harm in her custody, but that Gabriela is now at risk of harm with her father. The State disagrees with both assertions. The juvenile court found Gabriela was at risk due to abusive men Penny brings into the home and Penny's inability to exercise reasonable supervision. The court further points to Penny's older sons and their behavioral problems as evidence of such risks.
Penny has been involved with the Department of Human Services (DHS) in Iowa and Illinois for several years. She has physically abused her sons in the past, as have her paramours. Penny has been diagnosed with several mental health disorders including adjustment disorder with depression and anxiety; suspect depressive disorder; and personality disorder, NOS with borderline, passive aggressive, and self-defeating features. Her relationships with men follow an abusive pattern that threaten and harm, not only her, but also her children.
Debra Dunning-Johnson, a DHS social worker, testified that Penny was progressing well with services, however, she was concerned with Penny's inability to identify and recognize the needs of her children and to put those needs ahead of her own desires. For example, Penny would respond to psychological services until it was suggested she make a change. At that point, Penny would no longer cooperate. Her sons were to be in counseling but Penny only took them to half of the scheduled appointments.
By contrast, Gabriel has shown some initiative to improve his parenting skills and provide a safe environment for Gabriela. Gabriel moved out of the home in February 2002, and in August 2002, he filed an application for custody or visitation. He was granted visitation with Gabriela, which began as supervised but after DHS observed the interaction between father and daughter, the visits were changed to unsupervised. On his own initiative, Gabriel signed up for parenting skills classes and participated in the Batterers Education Program upon the request of DHS, and successfully completed both courses.
Gabriel has a history of domestic abuse with Penny but there had been no incidents in the two years prior to the hearing.
As evidence of her home being the appropriate placement, Penny points out that Dunning-Johnson's recommendation up until one day prior to the hearing was to continue placement of Gabriela with her mother. According to Dunning-Johnson's testimony, the day before the hearing she was informed Penny had sought a protective order against Gabriel because he entered her home when she was not there and without her permission. Dunning-Johnson testified that Gabriel had returned Gabriela after a visit but Penny was not home. Gabriel telephoned his service provider to ask what action he should take as he did not want to leave Gabriela alone in the home with only Jacob. The provider suggested he wait in the doorway until Penny arrived. Gabriel then went inside and waited. In light of this, Dunning-Johnson considered Penny's reaction in seeking a protective order to be unwarranted and a likely attempt to sabotage the father-daughter relationship. She therefore changed her recommendations on the eve of the dispositional hearing. We also note that the underlying problems with Penny's care of Gabriela did not suddenly surface with this singular incident triggering an about face in the recommendation but were delineated concerns in the district court adjudicatory findings.
Penny also asserts that, as Jacob was allowed to remain in her care, it should follow that her home was also safe for Gabriela. Dunning-Johnson testified that Jacob did not have a father or other family member in whose custody he could be placed. Dunning-Johnson stated that with continued in-home services, Penny's home would be safe for Jacob; however, Gabriela's situation presented another option. Dunning-Johnson testified Gabriela had a father she could be placed with who was very nurturing, had been cooperative with services, and could provide a more appropriate home for her.
The district court made findings as to the risks of harm Gabriela would be exposed to if she were left in Penny's care and the appropriateness of transferring custody to Gabriel. Upon our de novo review, we conclude those findings are supported by the evidence and we affirm.
Best Interests. Penny claims Gabriela's best interests are served by continuing her placement with her mother and her half-brother, Jacob. While siblings should be kept together whenever possible, our primary concern remains the best interest of the children. In Interest of T.J.O., 527 N.W.2d 417, 420 (Iowa Ct.App. 1994). The concerns for Gabriela's safety and well being override our preference for keeping these half-siblings together. See id. Authority for transfer of custody. Finally, Penny claims the juvenile court did not follow the requirements of Iowa Code section 232.102 regarding placement of Gabriela. Iowa Code section 232.102(1)(a) (Supp. 2001) provides, "[a]fter a dispositional hearing the court may enter an order transferring the legal custody of the child to . . . [a] parent who does not have physical care of the child, other relative, or suitable person." As such, the juvenile court had full authority to place Gabriela in the custody and care of her father, subject to protective supervision by DHS.