Opinion
No. 4-429 / 04-0468.
June 23, 2004.
Appeal from the Iowa District Court for Polk County, Karla J. Fultz, Associate Juvenile Judge.
A mother appeals from a juvenile court order which placed temporary custody of her two youngest children with their father. AFFIRMED.
Thomas Webster of Tingle, Knight, Webster Juckette, P.L.C., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, John Sarcone, County Attorney, and Corey McClure, Assistant County Attorney, for appellee-State.
Amy Kepes of the Youth Law Center, Des Moines, for minor children.
Considered by Mahan, P.J., and Zimmer and Eisenhauer, JJ.
Decision without published opinion. Affirmed.
A mother appeals from a juvenile court order which placed temporary custody of her two youngest children with their father. She contends the court's order is not in the children's best interests. She also argues the court erred as a matter of law by transferring custody of the children after a review hearing. We affirm the juvenile court.
I. Background Facts Proceedings
Loretta and Sam are the unwed parents of Bailey, born May 28, 2002, and Morgan, born June 18, 2003. Bailey and Morgan were removed from their mother's custody on July 23, 2003, after she and her boyfriend, Robert V., were arrested on domestic assault charges. The children were home when the incident, which led to their parents' arrest, occurred.
Robert is the father of Loretta's two oldest children. Those children are currently living with their paternal grandparents and are not involved in this appeal.
On August 20, 2003, Loretta and Robert were arrested again for violating a no contact order. The next day, Loretta consented to a temporary removal order, which placed custody of the children with their maternal aunt and uncle. On August 25, 2003, the State filed a petition alleging the children were in need of assistance (CINA) pursuant to Iowa Code sections 232.2(b)(c)(2) and 232.2(6)(n) (2003).
On September 18, 2003, the juvenile court returned custody of Bailey and Morgan to their mother after Loretta and Robert established that they had obtained separate residences. However, on September 29, 2003, the court found it necessary to enter a temporary removal order which transferred custody of the children back to their maternal aunt and uncle. The court concluded the children would be at risk of abuse if they remained in the care of their mother. Bailey and Morgan have been out of their mother's home ever since.
Loretta's relationship with Robert was marred by domestic violence on both sides.
On October 20, 2003, the State filed an application for modification of placement after the children's maternal aunt informed the Department of Human Services (DHS) that she could no longer care for them. Following hearing, the juvenile court adjudicated Bailey and Morgan as CINA and ordered the children placed in the temporary legal custody of DHS.
On December 22, 2003, the court held a disposition hearing. The court concluded the children could not be safely returned to Loretta's home. At the hearing, Sam asked the court to place custody of the children with him in Idaho. In a disposition order entered after the hearing, the juvenile court directed that the father's home in Idaho be assessed for its suitability as a placement for the children. The court confirmed that Bailey and Morgan remained CINA as previously adjudicated and scheduled a review hearing.
As a result of the court's order, a home study was subsequently conducted in Idaho.
On March 22, 2004, the juvenile court held a review hearing. After hearing evidence, the court entered a review order which confirmed that both children were CINA and ordered that the children be placed in the temporary legal custody of their father in Idaho. The court retained jurisdiction and scheduled a permanency hearing for July 20, 2004. Loretta has appealed from the court's order.
The order provided that the father was responsible for bringing the children to Iowa for visitation.
II. Scope of Review
We review an order entered after a review hearing in a CINA proceeding de novo. In the Interest of Blackledge, 304 N.W.2d 209, 210 (Iowa 1981). While we give weight to the juvenile court's findings of fact, we are not bound by them. In re S.V., 395 N.W.2d 666, 668 (Iowa Ct.App. 1986).
III. Discussion
On appeal, Loretta first contends the juvenile court's decision to transfer temporary custody of the children to their father is not in the children's best interests. Among other things, she asserts placement of the children in Idaho will impede efforts to reunify her with her children.
Upon our de novo review of the record, we find no reason to disagree with the juvenile court's actions. Bailey and Morgan have been out of their mother's custody since September 2003, primarily because of concerns regarding domestic violence and anger management. Since that time, Loretta has failed to make steady and significant progress toward reunification despite extensive DHS efforts including anger-management classes, emotional-intensity classes, parenting children with behavioral disturbances class, individual therapy, parent-skill building, in-home services, psychosocial evaluation, and supervised visits. During a supervised visit with her children, the DHS confirmed that Loretta grabbed Bailey and Morgan's five-year-old half brother, shook him violently, and loudly screamed at him. Loretta also screamed at Bailey scaring Morgan. In its disposition order entered in December 2003, the juvenile court noted that Loretta did not "exhibit any insight into her actions and the consequences to her children."
The mother was diagnosed with Obsessive/Compulsive Personality Disorder with Strong Histrionic Traits, Narcissistic Features in her Psychosocial Evaluation completed in October of 2003.
Evidence presented at the review hearing held March 22, 2004, revealed that Loretta had made some progress but was still exhibiting inappropriate behavior during supervised visits. Despite six months of services, Loretta had not been able to progress to the point of having unsupervised visitation. On the other hand, the record reveals the father and his spouse have a safe, stable, and permanent home in Idaho. The DHS has no protective concerns regarding the father, and no services are necessary for him. Under the circumstances, we agree with the juvenile court's decision to place Bailey and Morgan in the temporary custody of their father. Bailey and Morgan should not have to wait endlessly for responsible parenting by Loretta. In view of the ages of the children, the length of time they have been out of their mother's care, and the suitability of their father's home, we conclude it was in the children's best interests to place them in the temporary custody of their father rather than continuing placement in a state foster care home.
The mother's in-home therapist could not predict when Loretta would be able to begin unsupervised visits.
Loretta also claims the juvenile court erred as a matter of law in transferring custody of Bailey and Morgan to their father after a review hearing. See Iowa Code § 232.102(9) (limiting the alternatives available to the juvenile court following a review hearing). Loretta did not raise this issue before the juvenile court. Therefore, this issue has not been preserved for our appellate review.
In essence, the juvenile court reserved the issue of the father's request for custody in its disposition order pending completion of a study of his home. The mother did not object to consideration of the custodial issue at the hearing held March 22, 2004. She participated in the hearing and made no challenge to the juvenile court's ruling by post hearing motion.
We affirm the juvenile court's decision to place Bailey and Morgan in the temporary legal custody of their father pending a permanency hearing.