Opinion
No. 4-550 / 04-1001.
August 11, 2004.
Appeal from the Iowa District Court for Linn County, Jane F. Spande, District Associate Judge.
A mother appeals the juvenile court's permanency order. AFFIRMED.
David N. Nadler of Johnston Nathanson, P.L.C., Cedar Rapids, for appellant-mother.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, Harold Denton, County Attorney, and Lance Heeren, Assistant Linn County Attorney, for appellee-State.
Richard Mitvalsky of Gray, Stefani Mitvalsky, P.L.C., Cedar Rapids, guardian ad litem for minor child.
Considered by Sackett, C.J., and Vogel and Zimmer, JJ.
Karla, the mother of Jennie, has filed a petition on appeal asking that the juvenile court permanency order placing Jennie in the home of her maternal aunt and uncle be reversed, or that we enter an order setting this case for full briefing. The record is sufficient to address the issues without further briefing. We affirm the juvenile court.
Jennie, who was born in 1987 and will be seventeen years old in October of this year, testified that she wanted to be returned to the home her mother occupies with her mother's boyfriend Randy. Randy has operated as a father figure to Jennie. Jennie's father lives in the area of Karla's home but his relationship with Jennie is not clear and he is not a party to this appeal.
Jennie has been removed from her mother's care three times, primarily because Randy has hit her. The last time was early in 2003, at which time Jennie was found to be a child in need of assistance.
In February 2004 the State petitioned for a permanency hearing, and the juvenile court ordered that the goal remain family reunification and ordered Randy take anger management and batterer's education at his own cost. A review permanency hearing was held on June 2, 2004, and evidence was taken. At the time of the permanency hearing Jennie had been out of her mother's home for over a year. During that time Jennie first lived with her maternal grandparents and then with the maternal aunt and uncle and their family, in whose care she was to remain. The juvenile court recognized the strong bond Jennie has with her mother and Randy, but found Jennie needed a permanent placement and that Karla remained unwilling or unable to adequately provide for Jennie's physical care or assure that her emotional needs were met.
Karla contends in her petition that: (1) the State failed to show a material and substantial change or compelling reasons necessary to modify the earlier permanency order, (2) the juvenile court should have continued Jennie's placement for an additional six months and then considered reunification, and (3) the juvenile court should have given more weight to Jennie's desire to return home.
We review child in need of assistance cases de novo. In re A.M.H., 516 N.W.2d 867, 870 (Iowa 1994). "We review `both the facts and the law, and we adjudicate rights anew.'" Id. (citing In re T.A.L., 505 N.W.2d 480, 482 (Iowa 1993)). "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." A.M.H., 516 N.W.2d at 870 (citing T.A.L., 505 N.W.2d at 482).
Randy and Karla have had a long-term relationship. Randy apparently has medical problems and receives disability income. Karla works long hours at a fast food restaurant near her home. Because Randy spent more time in the home than Karla, he was involved with Jennie's discipline and he did not always respond responsibly to Jennie's misbehavior. Randy also has had problems with alcoholism, and it appears he can become combative when drinking. The episode that led to the removal came after Jennie suffered a black eye. Though initially Jennie remained in Karla's care subject to protective supervision, within a month she was placed in foster care because of the condition of Karla's home. There is a restraining order in place preventing Randy from having contact with Jennie. And while Karla has satisfactorily exercised her scheduled visitation with Jennie, because of Randy's presence there Karla could not return Jennie to their home. Karla and Jennie also have attended counseling. It appears there is a strong bond between mother and daughter.
The first issue we need to address is whether the State met the necessary burden to modify the initial permanency order. Karla contends the State failed to show a material and substantial change or compelling reasons necessary to modify the earlier permanency order.
We disagree with Karla's position and the authority she cites stating that the State carries this burden. The juvenile court has transferred guardianship and custody of the child to a suitable person under Iowa Code section 232.104(2)(d)(1) (2003). Consequently the State must meet the burden set forth in 232.104(3), which provides:
Prior to entering a permanency order pursuant to subsection 2, paragraph "d", convincing evidence must exist showing that all of the following apply:
a. termination of the parent-child relationship would not be in the best interest of the child.
b. Services were offered to the child's family to correct the situation which led to the child's removal from the home.
c. The child cannot be returned to the child's home.
There is convincing evidence that Jennie loves her mother and has a strong bond with her. Furthermore, Jennie is nearly an adult. Terminating her mother's parental rights is not in her best interest. There is also convincing evidence that the family has been offered services, including counseling and visitations, and that Randy, who remains in Karla's home, has not made the necessary efforts to correct his behavior so that Jennie will remain safe. The State met its necessary burden.
Karla next contends the case should be reviewed in six months. We find no reason to disagree with the juvenile court's decision not to order the matter reviewed in that time. Jennie's mother and aunt live forty miles apart and in different school districts. At this age Jennie needs the stability of remaining in one school system and of knowing she will stay there. The order entered gives her this stability.
We next address Karla's claim that the juvenile court did not give Jennie's preference enough weight. We have considered Jennie's testimony that she wishes to return to her mother's home and feels safe with her mother and Randy. A child's preference is not controlling. In deciding how much weight to give the preference, we consider the following factors: (1) Jennie's age and education level; (2) the strength of her preference; (3) her intellectual and emotional make-up; (4) her relationship with family members; and (5) her reasons for her preference. In re Marriage of Anderson, 509 N.W.2d 138, 141-42 (Iowa Ct.App. 1993); In re Marriage of Behn, 416 N.W.2d 100, 102 (Iowa Ct.App. 1987); In re Marriage of Ellerbroek, 377 N.W.2d 257, 258-59 (Iowa Ct.App. 1985).
Jennie is of an age and educational level where her preference would generally be given considerable weight if it were a question of choosing between or among safe homes. That is not the case here. Jennie was not safe in her mother's home and her therapist, who testified she has seen improvement in Jennie's behaviors, continues to believe Jennie will not be safe there. Jennie's guardian ad litem agreed, as did the juvenile court, that she would not be safe. The issue of Jennie's safety must trump her preference under these circumstances.