Opinion
No. 6-202 / 06-0375
Filed April 12, 2006
Appeal from the Iowa District Court for Linn County, Susan Flaherty, Associate Juvenile Judge.
A guardian appeals from the dispositional order removing the ward from her care and placing the ward in foster care. AFFIRMED.
Mary McGee Light, Assistant Public Defender, Cedar Rapids, for appellant-guardian.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, Harold Denton, County Attorney, and Lance Heeren, Assistant County Attorney, for appellee-State.
Robert Davison, Cedar Rapids, for mother.
Elizabeth Jacobi, Cedar Rapids, guardian ad litem for minor child.
Considered by Sackett, C.J., and Vogel and Mahan, JJ.
Kathey, the guardian of Kadijah, appeals from the adjudicatory and dispositional order that found Kadijah was a child in need of assistance and ordered her removed from Kathey's custody for foster family placement. She contends the grounds for removal are not supported by clear and convincing evidence, the court erred in removing the child, and the judge had a conflict of interest because the judge terminated Kathey's parental rights to her youngest child. On de novo review, we affirm.
BACKGROUND FACTS
Jennifer, the mother of Kadijah, met Kathey while they both were in prison. Kadijah was born in prison in 2003. By that time, Kathey had been released and Jennifer asked her to raise Kadijah. Kathey agreed and became Kadijah's legal guardian in 2004.
In September of 2005, the Department of Human Services received reports that Kathey allowed Kadijah to be exposed to drugs and violence. The investigation led to a founded report of denial of critical care. The State filed a child-in-need-of-assistance petition regarding Kadijah. In January of 2006, all the parties agreed Kadijah was a child in need of assistance, but Kathey contested the proposed disposition. Following a hearing held over two days, the court found Kadijah to be a child in need of assistance under Iowa Code sections 232.2(6)(c)(2) (child has suffered harm from failure to supervise properly) and (o) (acts or omissions of guardian result in presence of illegal drug in child) (2005). The court ordered Kadijah's custody transferred to the department for foster family care and granted Jennifer's request for concurrent jurisdiction so she could pursue an action in probate court to dissolve the guardianship.
SCOPE AND STANDARDS OF REVIEW
Our review of adjudicatory and dispositional orders is de novo. Iowa R. App. P. 6.4; In re E.W., 434 N.W.2d 898, 900 (Iowa Ct.App. 1988). The findings of the juvenile court are entitled to respectful consideration, but are not controlling. Iowa R. App. P. 6.14(6)( g). However, we do accord considerable deference to that court's assessment of credibility. In re Estate of Rutter, 633 N.W.2d 740, 746 (Iowa 2001).
DISCUSSION
Kathey raises several claims on appeal.
1. The court erred in removing Kadijah from Kathey's care.
The juvenile court is to make the least restrictive disposition available, which may include permitting the child to remain in the custody of a guardian "subject to terms and conditions which the court prescribes to assure the proper care and protection of the child." Iowa Code § 232.101(1); see id. § 232.99(4).
Kathey argues Kadijah's needs were met, she was clean, well fed, and dressed appropriately. She notes the department's assessment worker did not believe Kadijah's health and safety were in imminent danger at the time of the assessment, and nothing had changed by the time of the dispositional hearing to require Kadijah's removal. Kathey also argues she was participating in services and was willing to stop associating with friends and family in order to keep custody of Kadijah.
The juvenile court detailed Kathey's lengthy history of criminal activity, her unsuccessful involvement with the department when raising her four children, her involvement with people who are abusive and use illegal drugs, and her minimal involvement with services. The court found, "Kathey's [lack of] honesty is an important factor in the court's assessment as to whether Kadijah could safely remain in her guardian's care at this time." It continued:
However, for protective services to work to protect Kadijah from further harm, the court would have to rely on Kathey honestly working with service providers, honestly reporting who is in her home and who provides care for Kadijah, and honestly committing to change her associates and criminal lifestyle that she has been associated with for so many years. Kathey's history of dishonesty, particularly in matters before the court, makes it impossible for the court to rely on protective services to assure the child's safety.
From our review of the record, we agree with the court's assessment of and strong concern about Kathey's honesty. We find clear and convincing evidence that placing Kadijah with the department for foster family placement is the least restrictive placement appropriate under the circumstances before us. We do not believe allowing Kadijah to remain in Kathey's care with "terms and conditions" to assure her safety would protect Kadijah from probable harm.
Iowa Code section 232.102(5)(a) provides that the court should not transfer custody of a child unless it finds clear and convincing evidence either (1) the child cannot be protected from physical abuse without transfer of custody, or (2) the child cannot be protected from adjudicatory harm without transfer of custody. Kathey's next two claims relate to these two options.
2. The State did not prove the child cannot be protected from physical abuse without transfer of custody.
Kathey argues there has never been any evidence of physical abuse of Kadijah. Testing revealed the presence of cocaine in Kadijah's body at a level more than six times the cutoff level. Whether through Kathey's action or inaction, Kadijah received significant exposure to cocaine. Kathey continues to associate with friends and family who use illegal drugs. We find clear and convincing evidence transfer of Kadijah's custody is necessary to protect her from physical abuse.
3. The State did not prove the child cannot be protected from adjudicatory harm without transfer of custody.
The juvenile court found Kadijah to be a child in need of assistance both because of the presence of cocaine in her body and because she suffered harm because of a failure of adequate supervision. See Iowa Code §§ 232.2(6)(c)(2), (o). Kathey's track record as a parent is poor, having lost custody of her four children. When we consider what the future might hold for a child, we can gain insight from case records and a parent's past performance. In re A.J., 553 N.W.2d 909, 913 (Iowa Ct.App. 1996). The State has a duty to assure that every child within its borders receives appropriate care and treatment. In re D.T., 435 N.W.2d 323, 329 (Iowa 1989). The provisions of chapter 232 are designed to effectuate that duty. See In re M.M., 483 N.W.2d 812, 814 (Iowa Ct.App. 1992). They are preventative as well as remedial. In re L.L., 459 N.W.2d 489, 494 (Iowa 1990). The goal of our statutory scheme is to prevent probable harm to the child; our statutes do not require delay until after the harm has happened. Id. We find clear and convincing evidence Kadijah would be subject to some adjudicatory harm if allowed to remain in Kathey's custody.
4. The court erred in determining that continuing Kadijah in Kathey's home would be contrary to Kadijah's welfare.
Iowa Code section 232.102(5)(b) requires the court to make a determination that allowing the child to remain at home would be contrary to the child's welfare. Kathey acknowledges her long criminal history and involvement with the department. She admits she has family and friends with drug problems. She argues, however, that she is trying to overcome the past and is willing to do whatever is necessary to keep Kadijah in her custody. She notes service providers, department caseworkers, and the guardian ad litem all have stated Kadijah could safely be left in Kathey's custody, albeit with increased services.
The juvenile court found,
reasonable efforts to prevent removal from the guardian are not necessary given the multiple years of services provided to Kathey in the past and the concern that services cannot be effective in protecting the child if the caretaker is not honest in her dealings with the Department of Human Services and the Court.
The court further found,
Based upon the evidence presented, the Court's review of the record, considering the child's age and vulnerability to serious harm due to her age, the mother's inability to provide a home for this child, the guardian's parenting and criminal history and propensity toward dishonesty, the Court finds that Kadijah cannot safely be maintained in the care of a parent or her guardian. . . .
From our review of the record, we also find clear and convincing evidence Kadijah could not be maintained in Kathey's care. We find continuing Kadijah in Kathey's care would be contrary to her interest.
Clear and convincing evidence supports the juvenile court's finding Kadijah is a child in need of assistance and the court's decision to remove Kadijah from Kathey's care for placement in foster care.
We have considered all the issues the parties raised. Those not addressed specifically in this opinion either are without merit or not preserved for our review.