Opinion
No. 3-188 / 02-1424
Filed May 14, 2003
Appeal from the Iowa District Court for Black Hawk County, Walter W. Rothschild, Judge.
A mother appeals contending the juvenile court should have modified the permanency order and transferred custody of her daughter to her. AFFIRMED.
Kellyann Lekar of Roberts, Cohrt, Stevens Lekar, P.L.C., Waterloo, for appellant.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, Thomas Ferguson, County Attorney, and Steven Halbach, Assistant County Attorney, for appellee.
David Zellhoefer of Zellhoefer Law Office, Waterloo, for minor child.
Heard by Mahan, P.J., and Miller and Vaitheswaran, JJ.
A mother appeals contending the juvenile court should have modified the permanency order and transferred custody of her daughter to her. We affirm.
Background Facts and Proceedings. Lynette and Chad are the parents of Tabitha, born July 9, 1989. They have never married. In February 1990 Tabitha was adjudicated a child in need of assistance (CINA) pursuant to Iowa Code sections 232.6(j) and (l) (1989). The adjudication was based on Lynette's lack of prenatal care and the fact she was incapable of parenting Tabitha due to incarceration. In addition, Lynette has a history of substance abuse. Tabitha was placed in the custody of her father as long as he resided with his parents. In February 1992 a permanency hearing was held. The court found Lynette was incapable of parenting Tabitha, and Chad was unwilling to parent her. The juvenile court placed custody of Tabitha with her paternal grandparents.
In August 1993 Lynette sought to set aside the permanency order and obtain custody of Tabitha. Following a hearing, the juvenile court denied her request. In making its decision, the court stated:
Lynette . . . wants the child returned to her now. She appears to have no concept of the effect on Tabitha that such an abrupt change in the child's custody would cause. Her suggesting that the child should be returned to her now demonstrates a clear lack of [empathy] for the child and a simple-minded goal of meeting her own needs, not the child's.
On May 8, 2002, Lynette filed a motion to modify the permanency order. The State and the guardian ad litem resisted the motion. The juvenile court held a hearing on the matter. Lynette testified as to the changes she has made in her life and that she is presently capable of caring for Tabitha. She stated she has been drug-free for an extended period of time, has maintained employment at McDonald's for over a year, pays child support for Tabitha, has maintained a residence for over two years, and is working towards her GED. The juvenile court entered an order denying Lynette's motion to modify. The court acknowledged the progress Lynette had made in her life; however, it found it would not be in Tabitha's best interests to be returned to her. The court noted that Tabitha's grandparents have essentially raised her and she considers them her parents. Further, the court stated:
To change her custody at this point would no doubt have a negative psychological and emotional impact on the child. This is particularly true because the child's emotional and intellectual level is well below her age level. Despite her disabilities, she is clear that she wants to remain with her grandparents, and is ambivalent, at best, concerning her mother.
Lynette appeals.
Standard of Review. Our review of an action arising from CINA proceedings is de novo. Iowa R.App.P. 6.4. We give weight to the fact findings of the juvenile court, especially when considering the credibility of witnesses, but we are not bound by these findings. Iowa R.App.P. 6.14(6)( g).
Modification. Lynette contends the juvenile court should have modified the permanency order and transferred custody of Tabitha to her. Iowa Code section 232.104(5) states:
Subsequent to the entry of a permanency order . . . the child shall not be returned to the care, custody, or control of the child's parent or parents, over a formal objection filed by the child's attorney or guardian ad litem, unless the court finds by a preponderance of the evidence, that returning the child to such custody would be in the best interest of the child.
Iowa Code § 232.104(5) (2003). We agree with the juvenile court Lynette has made significant progress in her life. However, our responsibility in a modification of a permanency order is to look solely at the best interests of the child for whom the permanency order was previously entered. Part of that focus may be on parental change, but the overwhelming bulk of the focus is on the child and their needs."
In re of A.T. 508 N.W.2d 735, 737 (Iowa Ct.App. 1993) (emphasis added). From our de novo review, we find Lynette has failed to show it would be in Tabitha's best interests to transfer custody to her. Tabitha has lived most of her life with her grandparents, and she has developed a strong and loving bond with them. We, like the juvenile court, are concerned that if custody were changed at this point it would have a negative impact on Tabitha's emotional and psychological well-being and development. Tabitha testified she cannot recall living with anyone but her grandparents, and when asked with whom she would like to live, the juvenile court noticed her face light up into a bright smile and she said, without hesitancy, that she wanted to remain with her grandparents. She also expressed a negative reaction to living with her mother. For these reasons, we affirm the juvenile court's decision denying Lynette's application to modify the permanency order.