Opinion
No. 4-338 / 04-0539.
June 23, 2004.
Appeal from the Iowa District Court for Sac County, James A. McGlynn, Associate Juvenile Judge.
A mother appeals the juvenile court's orders finding the children were in need of assistance and continuing their status as children in need of assistance. AFFIRMED.
Christopher C. Polking of Polking Law Office, Carroll, for appellant-mother.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, Earl Hardisty, County Attorney, and Tina Meth-Farrington, Assistant County Attorney, for appellee-State.
Jeffrey Minnich, Carroll, for appellee-father.
Bruce Becker of Vest, Backer Murray, Sac City, guardian ad litem for minor children.
Considered by Sackett, C.J., and Huitink and Miller, JJ.
Jennifer, the mother of Brittany, McKayla, and Amber, appeals from the juvenile court orders finding the children were in need of assistance and continuing their status as children in need of assistance. She contends the State did not provide clear and convincing evidence the children failed to receive adequate care because of her mental condition. She also contends the finding is not in the children's best interest. Brian, the children's father, is not a party to this appeal. On de novo review, we affirm.
Jennifer has a history of mental problems including major depression, post-traumatic stress disorder, and suicidal ideation. Her mental problems are complicated by hormonal and thyroid problems. In November 2003 she voluntarily hospitalized herself and was released after a week. Her treatment includes antidepressant, anti-anxiety, anti-psychotic/bi-polar, and sleep-aiding medications.
Jennifer filed a petition for relief from domestic abuse on January 13, 2004. At a hearing on January 20, the court found she had not proved an assault and dismissed the petition and protective order. In its closing remarks, the court stated:
By all means this is a troubled marriage, you're both troubled people, your going to have to do something about that. . . . I probably will contact the Department of Human Services to investigate what's going on in this marriage because I'm concerned about these children.
. . . .
I'll contact them this afternoon to suggest to them along with the County Attorney that there be an investigation, because I have concern about this.
Directly after the hearing, Jennifer and Brian both went to the children's school apparently with the intention of removing the children and depriving the other parent of custody. Concerned about Jennifer's behavior and demeanor, school officials called police. The police and Department of Human Services temporarily removed the children from their parents' care and placed them with their paternal uncle and aunt. On February 2, following a hearing, the court ordered the removal continue.
The State filed a petition contending the children were children in need of assistance, and a contested hearing was held on February 13. The court stated its concern for the children based on Jennifer's mental health issues. It noted she received prescriptions and obtained mental health medications from her doctor, which made her dull and lifeless. The evidence suggests the medications were unnecessary and may have resulted from Jennifer becoming "so enmeshed with her children that she may have projected her own mental health issues onto them." The court also found:
Furthermore, because this appears to be a lifetime condition for her, the safety of the children will require that there be some monitoring of the mother's mental health condition if the children are to be returned to her. In fact, even though the mother claims that she is now taking all her medication and is fine, the Court has serious questions about the mental and emotional health of the mother. Since the review hearing a few days ago, the mother left Iowa and drove to Springfield, Missouri, to see an old friend who wasn't even expecting her. She has not even made contact with him. Her car broke down and she has been living in a women's shelter in the area. The mother's actions do not demonstrate a high level of stability in the mother. The Court is relieved that the children were not returned to the mother at the last hearing and forced to go along with her on this odyssey.
The court found the children were in need of assistance under Iowa Code section 232.2(6)(n) (2003). It authorized concurrent jurisdiction with the district court so that the district court could deal with child custody in the parties' dissolution proceeding. It also continued placement with the paternal uncle and aunt.
On March 8 and 18, the court held a contested dispositional hearing. The State, the guardian ad litem, and the father all agreed the children should remain in the custody of the Department of Human Services and with their uncle and aunt until they could be returned to their parents. Jennifer sought dismissal of the case and return of the children to her care.
The court had "few concerns" about Brian other than his not having a stable job and place of residence. Brian stipulated the children should remain with their uncle and aunt. The court had no concerns for the children's safety. The court found,
if appropriate counseling, treatment, and services are provided and if the father fulfills the Contract of Expectations [with DHS] which should be developed, then reunification with the father should be possible within the foreseeable future.
The court made lengthy and detailed findings concerning Jennifer in deciding to continue the children's removal from her care:
However, the Court has grave concerns about the mother. In some respects, she presents herself well. She is attractive, well groomed, and well dressed. However, there is something about here affect which is disturbing. Clearly District Court Judge Swanson had similar concerns about her at the end of the domestic abuse hearing, as did the school officials and police when the emergency removal occurred. A longtime family friend, Penny Sinak, provided a lengthy letter. She has known both the mother and the father for about 15 years, and the mother and the children spent about four days with her in January of this year. By the end of the four-day visit, Mrs. Sinak was extremely worried about the mother's mental health and had serious doubts about many of the things the mother was reporting. . . . Mrs. Sinak described the mother as gaunt, wide-eyed, jittery, easily distracted, and with serious mood swings. She also stated that the mother described the symptoms of abused women, identified herself as an abused woman, yet could not actually identify any abuse which she had suffered. The Court made similar observations of the mother, so it is clear that Mrs. Sinak actually did have the opportunity to observe the mother at length. The mother's brother, who in the Court's opinion was the most credible and objective witness to testify, testified about his observations of the mother and his concerns about the mother's situation. He also testified that he lived with the mother and the father for about one year and during that entire time did not witness any abuse by the father towards the mother. The mother acknowledges that she suffers from mental illness requiring treatment and medication, that she suffers from sleep problems, that she suffers from serious physical problems requiring treatment for her thyroid and the wearing of an estrogen patch, and that she suffers lingering effects from being in a cult when she was a teenager. She also claims that she suffers emotionally from abuse at the hands of her husband She claims that all of these conditions are controlled by the many medications that she takes. However, the evidence presented, as well as the Court's own observations of the mother, convince the Court that the mother has some type of neurosis, mania, or some other mental instability which would make placement of the children with her contrary to their welfare. The mother seems prone to histrionics. Things seem to be exaggerated and overblown. . . . In short, the Court does not believe that the mother is stable enough to safely assume custody of the children at this time. A Contract of Expectations should be developed by the mother and DHS if the mother wishes to seek reunification of the children. The Court will want to be sure that the mother's mental, emotional, and physical health needs are all being met and that she will be able to provide a safe, stable home for the children before reunification with her can occur.
The court continued the children's status as being in need of assistance, continued their placement with their paternal uncle and aunt under the supervision of the Department of Human Services and authorized concurrent jurisdiction with the district court so the district court could resolve custody, visitation, and support issues in the pending dissolution proceeding.
Jennifer appeals from the original adjudicatory finding and the subsequent dispositional order. She contends (1) the finding the children are in need of assistance is not supported by clear and convincing evidence, (2) the disposition is not supported by clear and convincing evidence, (3) there was insufficient evidence to establish that the aid of the juvenile court was required under section 232.96(9), and (4) the finding is not in the children's best interest. We address her contentions in turn.
The finding the children are children in need of assistance.
The juvenile court found the children in need of assistance on February 13, 2004. Jennifer timely appealed the order, but voluntarily dismissed the appeal on March 22, and procedendo issued on April 7. In a voluntary dismissal, "issuance of procedendo shall constitute a final adjudication with prejudice." Iowa R. App. P. 6.12(6). A number of Jennifer's claims here were denied in the February 13 order; consequently, we do not address them here, including (1) the claim there is not sufficient evidence to uphold findings in the February 13 order, (2) the claim that order was not in the children's best interest, and (3) in that order the juvenile court did not make a required finding its aid was required. See Iowa Code § 232.96(9). We note, however, as to the last claim that prior case law suggests the "default" position concerning the necessity of court aid is that aid is required unless the contrary is found. See In re G.R., 348 N.W.2d 627, 631-32 (Iowa 1984) (interpreting "aid is not required" in section 232.96(8)).
Disposition order.
Jennifer contends the dispositional order is not supported by the evidence. The court hears evidence "to determine what disposition should be made of the petition." Iowa Code § 232.99(1). After a hearing, the court is to "make the least restrictive disposition appropriate considering all the circumstances of the case." Id. 232.99(4). We agree with the juvenile court that the children could not be returned to either parent's care at that time. Considering the possible placements set forth in sections 232.100 through 232.102, we find the current placement with the paternal uncle and aunt to be the least restrictive alternative. The children are placed together, as is preferred. See In re Marriage of Quirk-Edwards, 509 N.W.2d 476, 480 (Iowa 1993). They are placed with a relative. See Iowa Code § 232.102(1)(a). We affirm on this issue.
Jennifer also argues the court placed too much weight on her prior association with a religious cult and suspicion she may be involved with the group again. Jennifer has the constitutional right to practice the religion of her choosing. See Loney v. Scurr, 474 F. Supp. 1186, 1196 (S.D. Iowa 1979). It would be unconstitutional for us to put any restraint on the exercise of her religious freedoms. See In re Marriage of Anderson, 509 N.W.2d 138, 141 (Iowa Ct.App. 1993); In re Marriage of Rodgers, 470 N.W.2d 43, 45 (Iowa Ct.App. 1991); Gould v. Gould, 342 N.W.2d 426, 432-33 (Wisc. 1984). While the decision of the juvenile court in the dispositional order talks of Jennifer's possible involvement with the cult, the discussion deals with her credibility and does not involve a judgment of the juvenile court concerning the religious upbringing of the children. The juvenile court has done nothing to restrain Jennifer's religious freedom.
Best interests.
Finally, Jennifer contends the children's best interests are not served. The continued placement of the children with their paternal uncle and aunt, along with the court's order for services, is the safest, least-restrictive placement for the children at this time. The juvenile court has reached the best alternative available; consequently we find no reason to reverse on this issue.
We have considered the claims and arguments of the parties. We determine those not specifically addressed in this opinion are without merit. We affirm the dispositional order in all respects.