Opinion
No. 6-204 / 06-0255
Filed April 12, 2006
Appeal from the Iowa District Court for Wapello County, William S. Owens, Associate Juvenile Judge.
A mother, father, and maternal grandfather appeal from the district court's review order. APPEAL DISMISSED IN PART AND AFFIRMED IN PART.
William H. Appel, Jr., Ottumwa, for appellants-mother and father.
Ryan J. Mitchell of Orsborn, Bauerle, Milani Grothe, L.L.P., Ottumwa, for appellant-grandfather.
Richard Hanson of Heslinga, Heslinga, Dixon Moore, Oskaloosa, for appellee-father.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, Mark Tremmel, County Attorney, and Jason Helm, Assistant County Attorney, for appellee-State.
Shannon J. Woods and Gayla R. Harrison of Harrison, Moreland Webber, P.C., Ottumwa, for minor children.
Considered by Sackett, C.J., and Vogel and Mahan, JJ.
Melissa and Joel jointly appeal, and the children's maternal grandfather Kenneth separately appeals from the district court's permanency review order that directed a termination petition be filed on behalf of Dakota and that continued Quinton's placement with his father, Robert. We dismiss Melissa and Joel's appeal with regard to Dakota and affirm the district court's order with regard to Quinton.
Melissa is the mother of Dakota and Quinton, ages twelve and eight respectively at the time of hearing, and Joel is Dakota's father. The children were adjudicated children in need of assistance in March 2005 pursuant to Iowa Code sections 232.2(6)(c)(2) (children are likely to suffer harm due to parent's failure to exercise care in supervising child) and 232.2(6)(g) (parent fails to provide adequate food, clothing, or shelter). The abuse and neglect suffered by the children at the hands of Melissa and Joel resulted in severe childhood trauma, as detailed in previous orders of the district court and our prior opinion in this case, In re D.A. Q.L. No. 05-1337, (Iowa Ct.App. Nov. 9, 2005). Dakota, who has been diagnosed with ADHD, moderate mental retardation, petit mal seizure disorder, and behavioral problems, was placed in foster care while Quinton was placed with his maternal grandparents, Kenneth and Linda. In August 2005, the district court continued Dakota in foster care placement but removed Quinton from his grandparents' care and placed him with his father, Robert, due to Quinton's report that Kenneth allowed him to view pornography. The court also allowed six additional months for Melissa and Joel to continue receiving services in an effort to work towards reunification with Dakota. As of the permanency review hearing in February 2006, Melissa and Joel had not benefited from the additional receipt of services. Just prior to that hearing, Melissa and Joel orally moved for a change of venue, which Kenneth joined. Kenneth also moved to continue the hearing, with Melissa and Joel joining in his motion. Both motions were overruled. The district court found that Melissa and Joel had received reasonable services to work for reunification, that the children's continued placements were in their best interests and ordered the State to file a termination petition with regard to Dakota. Melissa and Joel appeal as to whether reasonable efforts have been made by the State to reunify the family as well as asserting the best interests of Quinton are not being served by continuing his placement with his father. Kenneth appeals the denial of his motions for change of venue and continuance along with asserting the same best interests argument as to Quinton's placement. The State has filed a partial motion to dismiss the appeals with regard to Dakota as being from an interlocutory ruling.
Our review of permanency orders is de novo. In re N.M., 528 N.W.2d 94, 96 (Iowa 1995). "Although we give weight to the factual determinations of the juvenile court, especially when considering the credibility of witnesses, we are not bound by them." In re A.M.H., 516 N.W.2d 867, 870 (Iowa 1994) (quoting In re T.A.L., 505 N.W.2d 480, 482 (Iowa 1993)).
We agree with the State that the appeals before us with regard to Dakota are from an interlocutory ruling, thereby denying us jurisdiction. In re W.D., 562 N.W.2d 183, 185 (Iowa 1997). In its order following the permanency review hearing, the district court ordered the State to file a petition and pursue termination of Melissa and Joel's parental rights to Dakota. Accordingly, Dakota's custody has not finally been determined because of the impending termination of parental rights proceeding, and any appeal from this most recent permanency review order is interlocutory as no final adjudication of the rights of the parties has been made. In re T.R., 705 N.W.2d 6, 12 (Iowa 2005). We thereby grant the State's motion to dismiss the appeals as they relate to Dakota.
Melissa argues that DHS has failed to provide reasonable efforts at reunification with Quinton and placement with his father is not in his best interests. While the State has an obligation to provide reasonable reunification services, a parent has the obligation to demand other, different, or additional services prior to the termination hearing. In re S.R., 600 N.W.2d 63, 65 (Iowa Ct.App. 1999). Melissa does not point to any request for additional services she has made in the pendency of this case thus far. Moreover, as of our review of the initial permanency order in August 2005, we concluded reasonable efforts had been made. See In re D.A. Q.L. No. 05-1337, (Iowa Ct.App. Nov. 9, 2005). Since that time, reasonable services have continued to be provided to Melissa, the children, as well as Joel as is detailed in the reports admitted into evidence and so founded by the district court. The record and reports from service providers also indicate that Quinton continues to improve in Robert's care, while Melissa has made little progress toward reunification. We therefore concur and affirm the district court's finding that it is in Quinton's best interests to remain in Robert's care.
We repeat this conclusion with regard to Kenneth's issue on appeal that Quinton's placement with Robert is not in his best interests.
Kenneth also appeals, contending the court erred in overruling his motions to continue and for change of venue. We review a motion for continuance under an abuse of discretion standard. In re C.W., 554 N.W.2d 279, 281 (Iowa Ct.App. 1996). Denial of a motion to continue must be unreasonable under the circumstances before we will reverse. Id. Given the scant information presented to the district court as the basis for continuing the hearing, we cannot say the denial of Kenneth's request for a continuance was unreasonable. Kenneth made an oral motion the morning of hearing, making a vague allegation that "someone" from the Iowa Department of Human Services in Des Moines promised to attend the hearing. All parties had received notice of the hearing and were present. We affirm the district court's denial of Kenneth's motion to continue.
We also review the court's decision to grant or deny a change of venue for an abuse of discretion. In re S.D., 671 N.W.2d 522, 527 (Iowa Ct.App. 2003). It appears Melissa requested a change of venue to Washington County, because Melissa resided with Kenneth at the time of hearing. Proper venue for a child in need of assistance proceeding is the judicial district where the child is found, and the court may only transfer venue to another county when the child's best interests or convenience of the proceedings is served. Iowa Code § 232.62 (2005). At the time of hearing, Dakota resided in foster care in Wapello County, as did Joel and many of the service providers involved. The district court found:
Given that the [State] has decided to pursue termination of parental rights it would be inappropriate to change venue in the case to Washington County, Iowa. All of the parties who are most intimately acquainted with the circumstances of this case are in the Wapello County, Iowa area. Therefore, transfer of venue would be inappropriate at this time.
We conclude the district court did not abuse its discretion by denying the change of venue. We affirm.