Opinion
No. 4-331 / 04-0483
May 26, 2004.
Appeal from the Iowa District Court for Scott County, John G. Mullen, District Associate Judge.
Mother appeals from a juvenile court permanency order. AFFIRMED.
Jean Wahlen, Davenport, for appellant-mother.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, William E. Davis, County Attorney, and Gerda Lane, Assistant County Attorney, for appellee.
Patrick Kelly, Bettendorf, guardian ad litem for children.
Patricia Rolfstad, Davenport, attorney for J.V.
Considered by Vogel, P.J., and Hecht and Vaitheswaran, JJ.
Sonya is the mother of J.V., born in October 1991, and K.V., born in September 1999. On December 2, 2002, the Department of Human Services (DHS) removed the children from their mother's care due to concerns regarding her mental health and ability to take care of the children. On January 27, 2003, the children were adjudicated in need of assistance (CINA) pursuant to Iowa Code sections 232.2(6)(c)(2) (child is likely to suffer harm due to parent's failure to exercise care in supervising child) and 232.2(6)(n) (parent's mental capacity results in child not receiving adequate care) (2003). On March 2 and 5, 2004, a permanency hearing was held, and on March 11, 2004, the juvenile court entered a permanency order accepting DHS's permanency plan for adoption, ending reunification efforts, limiting visitation, and ordering Sonya, J.V., the attorneys, and the service providers to cooperate with the Court Improvement Project permanency mediation services. Sonya appeals.
The best interests of the children control the court's decision in granting a permanency order in a child custody matter. In re N.M., 528 N.W.2d 94, 96 (Iowa 1995). There is a rebuttable presumption that the children's best interests are served by parental custody. Id.
On appeal, Sonya argues that there was not clear and convincing evidence that the children could not be returned to her care and the court did not have authority to order the parties into mediation regarding an open adoption.
By failing to timely file a rule 1.904(2) motion in juvenile court, Sonya waived her claims regarding the permanency order's compliance with Iowa Code section 232.104. See In re A.M.H., 516 N.W.2d 867, 872 (Iowa 1994); see also Iowa R. Civ. P. 1.904(2).
Sonya suffers from mental illnesses including adjustment disorder with depressed mood with a possibility of major depressive disorders and a history of postpartum depression and menstrual depression. The record contains numerous episodes where Sonya has maintained irrational ideas. Sonya often believes someone is stalking her and breaking into her apartment. On one occasion, Sonya told J.V. that someone broke into their apartment and stole the last roll of toilet paper. Repeatedly, Sonya claimed her apartment was infested with lice. Service providers observed a white powdery substance on the floor and a greasy substance on the windows; Sonya had placed foot powder on the floor and Vicks Vapor Rub on the windows in an effort to kill the lice. On other occasions Sonya covered the windows with wrapping paper and placed a plastic bag over a chair to stop the lice infestation. Sonya also sprayed RID bug spray all over the apartment and even on K.V.'s hands in her effort. In reality, there were no lice. Sonya also believes there were snakes in the home and had the children searching for the snakes or snake tracks. On another occasion, Sonya told J.V. that she gave birth to a baby that was furry and striped.
Developmentally, K.V. is delayed and requires extra supervision. Abuse was founded against Sonya after K.V. suffered marks on his neck consistent with choking. J.V. is developmentally on task but at age twelve she behaves more like a parental figure to K.V. than Sonya and attempts to take care of Sonya as well. Sonya's visits with the children have been supervised due to her erratic and sometimes delusional behavior.
In the case permanency plan, DHS social worker Sharon Mulloy reported,
Sonya's mental health issues places [sic] the children at continued risk of harm. It appears that, at this time, there is nothing within Sonya's ability that she can do that can effectively and positively impact this. It also appears that there are no community resources available that are effective. Sonya's mental health issues are beyond her control and she has attempted everything available to moderate them. Her inability to appropriately parent her children and keep them safe is not of her doing. Sonya is not responsible for her mental health issues. However, the safety and welfare of [J.V.] and [K.V.] are still at issue. They cannot be returned to Sonya's care. They are in need of permanency.
This observation is reflected throughout the record. The juvenile court likewise stated, notwithstanding Sonya's active participation in mental health services and
the favorable reports from [her] psychiatrist as to her condition, the Court concludes that the mother continues to have acute and chronic mental health issues evidenced by her behaviors which can only be described as delusional. . . . [Sonya's] mental health condition does appear to affect her judgment, her reactions and the consistency with which she relates to her children and the quality of her interactions with them.
Upon our de novo review, we find that the adjudicatory harm continues and the children cannot be returned to their mother's care.
Sonya next argues that the juvenile court lacked the legal authority to order the parties into mediation regarding open adoption as it is not an option under section 232.104(2)(d). The State contends, however, that this Court has nothing to review because the district court merely ordered "that the mother, [J.V.] and the service providers and attorneys shall cooperate with the Court improvement project permanency mediation services" in the hope that an open adoption would result.
In the permanency order, the juvenile court also found,
It appears to the Court that the best option then would be open adoption where the children are able to maintain some contact with the mother and with each other even if they are adopted into separate homes. To that end the Court has referred the case to mediation for permanency project to see if such an alternative is possible.
The language of the order does not require the parties to proceed with an open adoption but rather orders their cooperation with mediation services based on its finding "that termination of parental rights and also severance of a connection with her brother is likely going to create serious emotional harm for [J.V.]." We agree that because the juvenile court did not order an open adoption, there is nothing for this Court to review regarding this issue.
We therefore, affirm the juvenile court's order for permanency.