Opinion
No. 5-620 / 05-0919
Filed October 12, 2005
Appeal from the Iowa District Court for Scott County, Nancy S. Tabor, Judge.
The State of Iowa, joined by the children's guardian ad litem, appeals from a juvenile court permanency order continuing custody of two children in the Iowa Department of Human Services for continued placement in family foster care. REVERSED AND REMANDED.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, William E. Davis, County Attorney, and Gerda Lane Assistant County Attorney, for appellant-State.
Marsha Arnold, Davenport, for father.
Patricia Zamora of Zamora, Taylor, Clark, Alexander Woods, Davenport, guardian ad litem for minor children.
Considered by Sackett, C.J., and Mahan and Miller, JJ.
The State of Iowa, joined by the children's guardian ad litem, appeals from a juvenile court permanency order continuing custody of two children in the Iowa Department of Human Services (DHS) for continued placement in family foster care. Upon our de novo review, we reverse and remand to the juvenile court.
Doreen was the mother, and Frederick (a/k/a "Paul" and hereafter referred to as "Paul") is the father, of Eleanore, born in December 1991, and Thomas, born in January 1994 ("the children"). Doreen, Paul, and the children lived in Texas until about one and one-half years before the December 2003 incident which brought the family to the attention of Iowa law enforcement authorities and the DHS. Doreen then met a man on the Internet, and eventually took the children to New York to live with him. She shortly left him and moved with the children to Florida, where they lived with various members of Doreen's family and in a homeless shelter.
Doreen is now deceased.
In November 2003 Doreen and the children reunited with Paul in Iowa. In December 2003 Doreen, who had suffered from mental problems for several years, attempted to kill the children and herself by overdose of a seizure medication. Paul, who had for some time suffered from substance abuse was intoxicated and as a result was unable to protect the children. The children were removed from the physical custody of their parents and placed in the legal custody of the DHS for placement in family foster care.
The juvenile court appointed a guardian ad litem (GAL) and court-appointed special advocates (CASAs) for the children. Following an uncontested hearing the children were adjudicated children in need of assistance (CINA) in February 2004. A March 2004 dispositional order continued the children in the custody of the DHS for placement in foster care, a status in which they have remained since their December 2003 removal.
Doreen was charged with and convicted of two counts of felony child endangerment and sentenced to consecutive terms of imprisonment. She died in prison in late August or early September 2004, either by accident or by suicide.
Paul was provided with services but by reason of serious alcoholism has been, and in all likelihood will continue to be, unable to resume custody of the children.
Doreen was a member of a sizeable extended family, several members of which live in Florida. Her family includes a sister, Kathy, who resides in Florida. Kathy is forty-nine years of age and married to Michael, who is sixty-five. They have a son, Sean, who is thirteen. Doreen and Kathy were at one time close, but Doreen had cut off contact with Kathy and certain other family members because of their disapproval of the actions, activities, and lifestyles of Doreen and Paul. Despite efforts to see the children, Kathy had been unable to do so since Eleanore was about two years of age.
When CINA proceedings were commenced Kathy initiated and thereafter maintained contact with the DHS and service providers. She wished to have the children placed with her if they could not be returned to Doreen or Paul. Doreen and Paul both expressed a desire to have the children placed with Kathy if the children could not be returned to one or both of them.
The juvenile court held a permanency hearing in early December 2004. Summarized, the court found the children were still processing feelings about potential permanent placement in their foster home, Doreen's death, and Paul's problems and failure to parent; the children needed permanency, but it was unclear what form it should take; although the foster parents were committed to the children long-term, it was not clear whether they were interested in adoption or whether the children would be receptive to adoption; the children had emotional bonds with Paul and needed to maintain that connection, and termination of his parental rights was not in their best interest; Kathy had consistently shown interest in the children but had not had recent contact with them; and the children viewed Kathy's motivation somewhat suspiciously because of the attitudes Doreen and Paul had regarding the estrangement resulting from their substance abuse and lifestyle. The court continued the permanency hearing for three months.
The juvenile court held a further permanency hearing on April 28, 2005. In a May 20, 2005 ruling the court ordered that the children's custody remain with the DHS and their placement remain with their current foster family. The State, joined by the GAL, appeals.
Our review of a permanency order is de novo. In re N.M., 528 N.W.2d 94, 96 (Iowa 1995). We give weight to the fact findings of the juvenile court, especially when considering the credibility of witnesses, but are not bound by them. Iowa R. App. P. 6.14(6)( g). The child's best interests control the court's decision. Iowa R. App. P. 6.14(6)( o); N.M., 528 N.W.2d at 96.
In late October or early November 2004 the State made a request, through the interstate compact on the placement of children, that the State of Florida conduct a home study of Kathy and Michael as a potential placement for the children. The study was undertaken and completed between the December and April permanency hearings. The resulting report showed that Kathy and Michael had a solid fourteen-year marriage; Sean was healthy and thriving in every respect; Michael was semi-retired and receiving social security, but was self-employed; Kathy had stable, well-paying employment; all criminal background checks, abuse registry checks, and drug screens were negative; and the family was anxious to have the children with them and very excited about the prospects of doing so. The report highly recommended placement of the children with Kathy, Michael, and Sean.
In December 2004 Kathy and Sean came to Iowa and spent four days with the children. A service provider spent a considerable amount of time visiting and observing the interactions, observed the children's demeanor and affect to be very positive, and stated the interactions resulted in the first time she had seen the children appear to "sparkle" in the year she had been working with them. The CASAs agreed. The service provider reported that Kathy and Sean seemed to have a natural connection with the children, having similar tastes, interests, and values. At the conclusion of the visit Eleanore sobbed at the prospect of Kathy and Sean leaving and Thomas wanted to know when he and Eleanore could visit their home. Kathy thereafter maintained contact and communication with the children. During spring break the children visited Kathy and her family in Florida for seven days, with positive results. Kathy and her family thereafter again maintained contact and communication with the children.
At the time of the April 2005 permanency hearing the children had been in family foster care, with the same foster parents, for over sixteen months. The children were doing well in school and socially. The foster parents wished to have the children continue living with them. Eleanore, and apparently Thomas as well, preferred remaining in their present foster home rather than encountering the uncertainties and changes involved in moving to a new home in Florida, adjusting to a new school, weakening current friendships, and developing new ones. The CASAs recommended termination of Paul's parental rights, and further recommended that the foster parents be given a chance to adopt. Paul had changed his prior position, and now recommended that the children remain in family foster care.
The State recommended the children be placed in the guardianship and custody of Kathy and Michael. An in-home worker for a service provider recommended placement with Kathy and Michael. While acknowledging the good care and devotion of the foster parents and the difficulty of making a recommendation, the GAL recommended placement with Kathy and her family, believing that otherwise fully appropriate family placement is preferable and in the children's long-range best interest.
Psychologists who had been providing therapy to the children noted that Eleanore had become able to shed her role of adult and pseudo-parent for Thomas, and to assume a more proper adolescent role. They believed the children's input about placement should be part of the process. They felt the children would adjust if placed with their aunt Kathy, and stated they could assist with the move if requested.
At the time of the April 2005 permanency hearing the juvenile court was faced with a choice between transferring guardianship and custody of the children to their maternal aunt, Kathy, and her family, see Iowa Code § 232.104(2)(d)(1) (2005), and ordering another planned permanent living arrangement, custody in the DHS and long-term foster care, see id. § 232.104(2)(d)(4). It chose the latter. For several reasons we respectfully disagree with the court's choice.
First, the juvenile court in part emphasized and relied upon a belief that the children had had many years of frequent moves, instability, and lack of established friendships, and that under those circumstances their need to avoid any further disruption outweighed the family connection that it recognized would be critical to their future growth and development. The evidence appears to show, however, that the substantial instabilities in their lives, consisting of Doreen's deteriorating mental condition, Paul's developing alcoholism, and their several geographic moves, all occurred within about one and one-half years before the CINA proceeding began. We thus disagree with the juvenile court's apparent reliance, in part, upon a lengthy history of frequent moves and instability. We also note again the expert psychological testimony indicating the children would be able to adjust to a change consisting of being placed with their aunt Kathy.
Second, the juvenile court is to order "another planned permanent living arrangement" only "[i]f the [DHS] has documented to the court's satisfaction a compelling reason for determining that an order under the other subparagraphs of this paragraph [such as, here, guardianship and custody with Kathy] would not be in the child's best interest." Iowa Code § 232.104(2)(d)(4). We note that the DHS not only did not attempt to document that guardianship and custody with Kathy would not be in the children's best interest, but in fact forcefully argued that it would be in their best interest. We need not and do not decide that the juvenile court cannot order another planned permanent living arrangement in the absence of such documentation. We do conclude, however, that under the facts and circumstances of this case and the quoted language from section 232.104(2)(d)(4), the DHS's position is entitled to substantial weight.
Finally, we note that the home of a relative is considered a less restrictive placement than placement with the DHS, see, e.g., In re N.M., 528 N.W.2d at 97 (analyzing Iowa Code sections 232.99(3) (1993) [now section 232.99(4) (2005)] and 232.102(1) in the context of an appeal from a permanency order). "Thus chapter 232 favors relative placements over non-relative placements." Id. The juvenile court was here faced with what amounted to a choice between long-term foster care in an excellent foster home, and guardianship and custody in the excellent home of a caring and committed close relative. We conclude that under such circumstances the choice should go to the relative's home.
Upon our de novo review we find that the children's long-term best interest will be best served by permanency in the form of guardianship and custody with their maternal aunt Kathy. We therefore reverse the juvenile court's May 20, 2005 permanency order and remand to that court for further orders, not inconsistent with this opinion, establishing the time, circumstances, and details of such a transition.