Opinion
No. 1-713 / 01-0536.
Filed January 9, 2002.
Appeal from the Iowa District Court for Clayton County, ALAN D. ALLBEE, Associate Juvenile Judge.
Mother appeals a juvenile court dispositional order holding her child was in need of assistance and ordering the child's physical care be transferred to her father. AFFIRMED.
James Burns of Miller, Pearson, Gloe, Burns, Beatty Cowie, P.C., Decorah, for appellant.
Thomas J. Miller, Attorney General, Charles K. Phillips, Assistant Attorney General, and Stephen Saunders, Assistant County Attorney, for appellee-State.
Linzy Martin, Strawberry Point, for appellee father.
Steve McCorkindale of Ehrhardt, Gnagy McCorkindale, Elkader, guardian ad litem for minor child.
Considered by SACKETT, C.J., and MAHAN and HECHT, JJ.
Mother appeals a juvenile court dispositional order holding her child was in need of assistance and ordering the child's physical care be transferred to her father pursuant to Iowa Code section 232.104(2)(d)(2) (1999). On appeal, she contends the State failed to show by clear and convincing evidence she could not protect her child from harm. We affirm.
Roger and Sara are the parents of Hailey, born March 11, 1999. The parents never married. Hailey first came to the attention of the Department of Human Services (DHS) in September 2000 after she suffered a broken arm. Sara provided no plausible explanation for the cause of the injury and the DHS concluded the injury was inflicted by either Sara or her boyfriend. The DHS also noted Sara had failed to provide adequate care in the past. In particular, Hailey had to be taken to the emergency room for treatment of a severe diaper rash. Moreover, Hailey had suffered from head lice which had not been properly treated by her mother.
Hailey was removed from the family home and placed in foster care. Despite the offer of numerous services, Sara failed to make sufficient progress to the point DHS could recommend unsupervised visitation. Social workers were particularly concerned whether Sara could manage her daily affairs without the interference of her boyfriend. In March 2001, a permanency hearing was held. The juvenile court concluded that based on information obtained from home studies, it was in Hailey's best interest her physical care be transferred to Roger, currently enlisted in the Army and living in Texas with his new wife. The court noted Roger consistently exercised visitation and appeared to understand Hailey's special needs. Sara appeals.
Our review of child in need of assistance proceedings is de novo. In re K.N., 625 N.W.2d 731, 733 (Iowa 2001). We review both the facts and the law, and we adjudicate rights anew. Id. As in all juvenile proceedings, our fundamental concern is the best interests of the child. In re E.H. III, 578 N.W.2d 243, 248 (Iowa 1998).
Before transferring sole custody of the child from one parent to another pursuant to Iowa Code section 232.104(2)(d)(2), the State must present convincing evidence that: (1) a termination of the parent-child relationship would not be in the best interest of the child; (2) services were offered to the child's family to correct the situation which led to the child's removal from the home; and (3) the child cannot be returned to the child's home. Iowa Code § 232.104(3).
Sara incorrectly states the State's burden of proof. The State on a permanency hearing needs only show the child cannot be returned to the home by convincing evidence, not by both clear and convincing evidence. See Iowa Code § 232.104(3) (1999); In re A.D., 489 N.W.2d 50, 52 (Iowa Ct.App. 1992).
We find ample support in the record to support the permanency order entered by the juvenile court in this matter. We agree with the juvenile court Sara has failed to make sufficient progress toward being able to provide Hailey with a safe and secure environment in which to live. Sara has failed to demonstrate appropriate judgment in the treatment of Hailey's medical needs. In particular, she failed to promptly obtain medical treatment for Hailey's fractured arm, leaving the responsibility to her day care provider. Moreover, Hailey's emergency room treatment for severe diaper rash and the onset of head lice are of notable concern. We acknowledge Sara made some progress toward demonstrating the ability to satisfactorily parent Hailey. However, we find convincing evidence in the record supporting the district court's determination that as of the time of the dispositional order, Sara had not demonstrated sufficient progress to justify Hailey's return to her home.
Upon our review of the record, we agree with the juvenile court that Hailey should be placed with her father. The record demonstrates Roger can provide a safe, stable, and nurturing environment for his daughter. Accordingly, we find the juvenile court did not err in transferring physical custody of Hailey from her mother to her father. The juvenile court is affirmed in its entirety.
AFFIRMED.